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I 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


ELEMENTS 


OF 


THE  LAW  OF  TORTS 


FOR    THE 


USE    OF    STUDENTS 


BY 


MELVILLE   M.   BIGELOW,   Ph.D. 


FOURTH    EDITION 


BOSTON 

LITTLE,   BROWN,   AND  COMPANY 

1891 


T 


Entered  according  to  Act  of  Congress,  in  tlie  year  1878,  by 

MELVILLE    M.    BIGELOW, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 
Entered  according  to  Act  of  Congress,  in  the  year  1882,  by 

MELVILLE    M.    BIGELOW, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 

Ccpy  light,   1886, 
By  Melville  M.  Bigelow. 

Copyright,  1891, 
By  Melville  M.  Bigelow 


o 


Univeksity  Press  : 
John  Wilson  and  Son,  Cambridge. 


PREFACE. 


THE  object  of  this  book  is  to  help  the  student 
to  a  clear  understanding  of  the  legal  concep- 
tion of  a  tort.  Accordingly,  after  such  explana- 
tion in  the  Introduction  as  seemed  desirable,  the 
student  is  taken  directly  to  the  torts  themselves 
of  the  law.  But  the  book  is  at  the  same  time 
intended  for  a  guide  to  the  authorities,  and  the 
student  should  therefore  take  it  with  him  to  his 
laboratory,  the  law  library,  and  there  carry  on  his 
work.  He  should  make  special  study  of  the  cases 
given  in  the  text  as  examples,  and  go  as  much 
further  into  the  Reports  as  possible.  So  doing,  he 
cannot  fail  of  success,  if  he  has  not  missed  his 
calling. 

A  word  may  be  added  in  regard  to  the  arrange- 
ment of  the  subject  in  this  book.  The  old  and 
common  course  has  been  to  present  the  Law  of 
Torts  as  consisting  of  a  series  of  wrongs  (1)  to  the 
person  or  body,  (2)  to  property,  (3)  to  reputation. 
But,  not  to  mention  the  special  difficulties  which 
such    an    arrangement,    carried    out    in    detail,   in- 


vi  PREFACE. 

volves,  the  chief  objection  to  it  is  that  it  emphasizes 
the  object  of  the  tort  rather  than  the  tort  itself. 
The  arrangement  in  this  book  emphasizes  the  tort, 
by  presenting  first  and  foremost  its  constituents  or 
elements ;  to  wit,  (1)  the  breach  of  duty  to  refrain 
from  fraud  and  malice,  (2)  the  breach  of  certain 
'  absolute '  duties,  (3)  the  breach  of  duty  to  refrain 
from  negligence. 

Occasion  is  now  taken,  after  the  preparation  of 
an  edition  of  the  book  for  the  University  of  Cam- 
brido-e,  Enoland,  to  revise  the  whole  work  upon 
the  general  lines  of  tliat  edition;  a  step  that,  after 
twelve  years  of  but  slight  changes,  had  at  last,  in 
the  growth  of  the  subject,  become  very  needful. 
Among  other  changes  made,  the  Introduction  and 
a  chapter  on  Malicious  Interference  with  Contract, 
adapted  from  the  English  edition,  have  been  added. 

M.  M.  B. 

Boston,  December,  1890. 


CONTENTS. 


Cases  Cited xiii 

Introductiox ii 


PART   I. 


BREACH   OF   DUTY  TO   REFRAIN   FROM   FRAUD 

OR  MALICE. 


CHAPTER   I. 

Deceit ' 17 

§  1.    Introductory 17 

§  2.    Of  the  Representation ^^   ^ 

§3.    Of  Defendant's  Knowledge  of  Falsity ^'^/J' 

§  4.    Of  Plaintiff's  Ignorance  of  Falsity 37 

§  5.   Of  the  Intention  that  the  Representation  should 

be  acted  upon 45 

§  6.    Of  Acting  upon  the  Representation 47 

§  7.    Of  Slander  of  Title  and  Trade-Marks 49 


CHAPTER   II. 

•  •  — ^^n 

54    > 


Malicious  Prosecution  .    ,    .    .    , , 

§  1.    Introductory 

§  2.   Of  the  Termination  of  the  Prosecution     ....       55 
§  3.   Of  the  Want  of  Probable  Cause 61 


^/ 


Vlll  CONTENTS. 

PAGE 

§  4.   Of  Malice 69 

§  5.    Of  Damage 71 

§  6.   Of  Analogous  Wrongs 72 


CHAPTER  III. 

Conspiracy 75 

§  1.   Introductory 75 

§  2.    Of  Malice  and  the  Combination 77 

§  3.    Of  Damage 79 


CHAPTER  IV. 

Malicious  Lnterfekence  with  Contract     ....  80 

§  1.    Introductory 80 

§  2.    Of  Malice 80 

§  3.    Of  Damage 82 

§  4.   Of  the  Distinction  between  Contract  and  Property  83 


CHAPTER   V. 

Slander  and  Libel 84 

§  1.    Introductory 84 

§  2.   Of  the  Interpretation  of  Language 85 

§  3.    Of    the   Publication   of   Defamation    and    Special 

Damage 87 

§  4.    Of  the  Imputation  of  having  Committed  a  Crime  .  90 
§  5.    Of  the  Imputation  of  having  a  Contagious  or  In- 
fectious Disease  of  a  Disgraceful  Kind  ....  92 
§  6.    Of   an   Imputation  affecting  the  Plaintiff  in  his 

Office,  Business,  or  Occupation 93 

§  7.    Of  an  Imputation  tending  to  Disinherit  the  Plain- 
tiff       96 

§  8.    Of  an  Imputation  conveyed  by  Writing,  Printing, 

or  Figure;  that  is,  of  Libel 96 

§  9.    Of  the  Truth  of  the  Charge 08 

§  10.    Of  Malice  and  Privileged  Comnmnications  ...  99 


J 


CONTENTS.  iX 


PART   II. 
BKEACH   OF  ABSOLUTE   DUTY. 

CHAPTER   VI. 

PAGE 

Assault  asu  Battery 121 

5  1.    introductory 121       , 

§  2.    Of  A«s;iult,s  (uitliuut  Contact) 121  '^ 

§  o.    Of  Batleiics 124 

§4.   Of  J ustitiuble  Assault;  Self-defence;  '  Son  Assault 

Demesne' 129 

§  5.    Of  Violence  to  or  towards  One's  Servants      .     .     .  132 

CHAPTER  VII. 

False  Imprisonment 137 

\^         §  1.    Introductory 137 

§  2.    Of  the  Nature  of  the  Restraint 1^'^   V/ 

§  3.    Of  Arrests  with  Warrant 140 

§  4.   Of  Arrests  without  Warrant 156 


CHAPTER  VIII. 

Enticement  and  Seduction       163 

./V         §1-    Introductory 163 

§  2.    Of  Parent  and  Child 164  y^ 

§  3.   Of  Guardian  and  Ward 170 

§  4.   Of  Husband  and  Wife 171 


CHAPTER  IX. 

Trespasses  upon  Property 178 

§1.   Introductory 178^^7 

§  2.    Of  Possession 178  /  . 

§  3.   Of  What  constitutes  a  Trespass  to  Property  .     .     .  191 


CONTENTS. 


CHAPTER   X. 

PAGE 

Conversion 203 

§  1.    Introductory 208      ^ 

§  2.    Of  Possession 204      f 

§  3,    Of  What  constitutes  Conversion 208    J 

CHAPTER   XI. 

Infringement  of  Patents,  Trade-Marks,  and  Copy- 
rights       ....  223 

§  1.    Introductory 223 

§  2.   Of  Patents 223 

§  3.    Of  Trade-Marks 233 

§  4.    Of  Copyrights 234 

CHAPTER   XII. 

Violation  of  Rights  of  Support 242 

§  1.    Introductory 242 

§  2.    Of  Lateral  Support 242 

§  3.   Of  Subjacent  Support 250 

CHAPTER   XIII. 

Violaton  of  Water  Rights 253 

§  1.    Introductory 253 

§  2.    Of  Usufruct  and  Reasonable  Use  of  Streams     .     .  253 

CHAPTER   XIV. 

Nuisance 259 


u 

CHAPTER  XV. 


§  1.    Introductory 259 

§  2.    Of  What  constitutes  a  Nuisance 260 


Damage  by  Animals 272 

§  1.   Introductory 272 


CONTENTS.  xi 

PAQB 

§  2.   Of  Notice  of  Propensity  to  do  Damage 272 

§  3.    Of  Escape  of  Animals 275 


CHAPTER   XVI. 

Escape  of  Dangerous  Things 277 

§1.   Introductory 277 

§  2.    Of  tlie  Nature  of  the  Protectiou  Required       .     .     .  277 


PART   III. 


BREACH    OF     DUTY    TO    REFRAIN    FROM 
NEGLIGENCE. 

CHAPTER   XVII. 

Negligence 28.5 

§  1.    Introductory 285    (^ 

§2.   Of  the  Lpfjal  Conception  of  Negligence       ....  285 

§  3.    Of  Innkeeper  and  Guest 290 

§  4.    Of  Bailor  and  Bailee 291_y 

§  5.    Of  Professional  Services       298 

§  6.    Of  Telegraph  Companies 303 

§  7.   Of  the  Liability  of  Agents,  Servants,  Trustees,  and 

the  Like 305 

§  8.    Of  Public  Bodies  and  Public  Officers 312 

§  9.  Of  the  Use  of  Premises 315 

§  10.    Of  Notice 331 

§  11.   Of   Contributory    Negligence,   or    Negligence   as 

Defence 332 

§  12.    Of  Intervening  Forces 342 


INDEX 355 


CASES  CITED. 


A. 

PAGE 

Abrahams  v.  Kidney  .  .  167,  168 
Abrath  v.  Northeastern  Ry.   Co. 

69,  71,  99 

Absor  V.  French 197 

Adams  v.  Lisber 62 

Agnew  V.  Johnson       ....     219 
Albanj'  Inst,  for  Savings  v.  Bur- 
dick  41,  42 

Albert  v.  Strange 235 

Albro  V.  Jaquith 328 

Aldred  v.  Constable     ....     210 

Aldrich  v.  Wright 202 

Alexander  v.  Southey  .  221,  222 
Allen  V.  Crofoot      .  " .     .       199,  200 

V.  Hart 29 

V.  Wright 162 

Alton  V.  Midland  Ry.  Co.     .     .   135, 

345,  346 
Ames  V.  Union  R.  Co.      .     ,     .    346 

Amick  V.  O'Hara 202 

Amory  v.  Fh'n 201 

Anderson  v.  Hill 25 

Andre  v.  Johnson 129 

Andres  v.  Koppenheaver  .  90,  91 
Andrews  v.  Harris  ....  148 
Arkwright  v.  Newbold  .  .  32,  34 
Armistead  v.  Wilde  ....  290 
Armory  v.  Delamirie  ....  206 
Armstrong  v.  Lancashire  Ry.  Co. 

348,  349 

Arthnr  v.  Gayle 219 

Arundell  v.  White 57 

Ash  V.  Dawnay 198 

Ashby  V.  White 313 

Aston  V.  Blagrave 95 

Atkinson  v.  Matteson  ....    144 

Austin  V.  Bowling 152 

V.  Great  Western  Ry.  Co.  .  346 
Ayer  v.  Bartlett  .....  185 
Ayre  v.  Craven 94,  95 


B. 

Bacon  v.  Sheppard . 

V.  Towne     .     . 
Badger  v.  Nichols  . 
Baglehole  v.  Walters 
Bailey  v.  Kalamazoo  Pub 

V.  Wright  .  . 
Baird  v,  Williamson 
Baker  v.  Bolton  .    . 

V.  Brown  .  . 
Balston  v.  Bensted 
Bamford  v.  Turnley 
Barbee  v.  Armstead 
Barker  v.  Braham  . 
Barnes  v.  Allen  .     . 

V.  McCrate  .     . 

V.  Ward  .  .  . 
Barnett  v.  Guildford 
Barnstable  v.  Thacher 
Barratt  v.  Price  .  . 
Barrett  v.  Warren  . 
Hartley  v.  Richtmyer 
Barton  «.  Burton  . 
Bartonshill  Coal  Co.  v 


Co 


PAQB- 
.     190 

59,  65 
.      22 
.      44 
,.    117 
.    194 
.    279 
.    136 
.    256 
.    258 
261,262 
176 
153 
174 
102 
318. 
189 
181 
143 
221 
165 
219 


McGuire 

330 

V.  Reid 329,  330 

Bassett  v.  Salisbur\^  Manuf.  Co. 

258 
Batchelor  v.  Fortescue  ...  316 
Bate  Refrigerator  Co.  v.  Gillett 

230 
Batson  v.  Donovan      ....    295 

Baum  V.  Clause 92,  99 

Baxendale  v.  McMurra_v  .     .     .    265 

Baxter  v.  Taylor 184 

Barnes  t).  Brewster     .     .      161,162 

Beach  v.  Hancock 123 

Beal  V.  Robeson 69 

V.  South  Devon  Ry.  Co.     .  293, 
296,  311 
Beattie  v.  Ebury SQi 


XIV 


CASES  CITED. 


Beck  V.  Stitzel  .     . 
Beckwith  v.  Philby 
Beedle  v.  Bennett   . 
Bellamy  v.  Buvch    . 
Belletoutaine   K.  Co. 


Belo  V.  Wren.  .  . 
Benjamin  v.  Storr  . 
Bennet  v.  Bullock  . 
Bennett  v.  Allcott   . 

V.  Peck    .     .     . 

V.  Smith  .  . 
Berksiiire  Woollen  Co 


Beseb^  v.  Matthews 
Bibley  v.  Carter  .  . 
Bicknell  v.  Dorion  . 
Biddall  v.  Maitland 
Bigaouette  v.  Paulet 
Billings  V.  Fairbanks 

V.  Wing  .     .     . 
Bird  V.  Holbrook 

V.  Jones  .  .  . 
Birdsey  v.  Butterlield 
Bishop  V.  Small  .  . 
BixbyJJ.  Brimdige  . 
Blackliam  v.  Pugli  . 
Blackman  v.  Johnson 
Blake  v.  Barnard     . 

v.  Lanyon  .  . 
Blanchard  v.  Beers 
Bliss  V.  Hall  .  .  . 
Bloodworth  v.  Gray 
Bloxam  v.  Hubbard 
Blyth  V.  Birmingham 
works  Co.  .     .     . 

V.  Topham    .     . 
Boilch  V.  Smith  .     . 
Bonomi  v.  Backhouse 
Booth  V.  Ratte     .     . 
Bostick  V.  Rutherford 
Boswortli  *.  Swansea 
Bovill  V.  Pimm  .     . 
Bowditch  V.  B:ilchin 
Bowen  v.  Hall     .     . 
Bowker  v.  Delong   . 
Boyd  V.  Cross     .     . 
Boj'le  V.  Brandon    . 
Bradburj'  v.  Hatten 
Bradlaugh  v.  Newdegate 


V,  Proctor 

290 
56,  57 
.  245 
.   55 
.  194 
89,  171,  175 
.  112 
.   90 
275,  316,  335 
137,  139 
.   29 


PAGE 
.   .   .    91 

.  .  .  159 
.  .  .  231 
.  .  .  95 
Snvder 

350 
104,  108 
.  268 
.  188 
.  134 
.  172 
.  173 


Water- 


,  26 

.  72 

.  113 

.  34 

.  122 

.  346 
226,  227 

.  262 

.  93 

.  221 


.  265 
.  319 
.  321 
242,  243 
.  267 
.  65 
.  336 
.  229 
.  160 
80,  81,  82 
.  34 
61,  69 
.  167 
.  236 
.   74 


PAGE 

Bradley  v.  Fisher 314 

V.  Fuller 48 

Bradt  v.  Towsley 88 

Brady  v.  Whitney 217 


Braniwell  v.  Halcomb 
Brannock  v.  Bouldin   .     . 
Brass  v.  Maitland   .     .     . 
Braveboy  v.  Cockfield 
Breese  v.  United  States  Tel 


Bridge  v.  Grand  June 


236,  237 
.  78 
296,  344 
.  72 
Co. 
303,  304 

Breiman  v.  Paasch 89 

Brewer  v.  Boston  Theatre     .     .    311 
Ry.  Co. 

337 
Bridges  v.  Hawkesworth .     .    .    208 

Briggs  V.  Burton 57 

V.  Taylor  ....  293, 295 
Brinsmead  v.  Harrison  .  .  .217 
Bristol  V.  Wilsmore  ....  29 
Broad  i;.  Ham  .  .  .  .54,  62,  65 
Broadbent  v.  Imperial  Gas  Co. 

261 
.    257 
.    159 
.    217 
72,  176 
.      90 
.    249 
.      61 
.    289 
.    202 
.    264 
.    259 
.    310 
.      86 
.    201 
128 
59 
39 
348 
86 
91 
270 
314 
18 
49 
138 
304 
186 
182 


V.  Ramsbotham  . 
Brockway  v.  Crawford 
Bromley  v.  Coxwell 

V.  Wallace  .     . 
Brooker  v.  Coffin     . 
Brooks  V.  Curtis 
Broughton  v.  Jackson 
Brown  V.  Boorman  . 

V.  Carpenter 

V.  Collins     .     . 

V.  Eastern  Ry.  Co 

V.  French      .     . 

V.  Hanson    .     . 

V.  Holburger     . 

r.  Kendall    .     . 

V.  Lakeman 

V.  Leach  .     .     . 

V.  McGregor     . 

V.  Myers       .     . 

V.  Nickerson     . 

V.  Watrous  .     . 
Browning  v.  Hanford 
Brownlie  v.  Campbell 
Bruff  V.  Mali  .     .     . 
Brushaber  v.  Stegemann 
Bryant  v.  American  Tel. 
Buck  V.  Aiken    .     .     . 
Buckley  v.  Gross    .    . 


Co 


127. 


CASES  CITED. 


XV 


PAGE 

Buckley  v.  Gutta  Percha  Manuf. 
Co.  '  341,  342 

Biilmer  v.  Bulmer 135 

28 
221 
Sar- 

234 

347 

,  63,    65 

.    209 


Burgess  i'.  Seligman  . 
Burroughes  v.  Bayne  . 
Burrow  Lithographic  Co 

ony 

Burrows  v.  March  Gas  Co, 
Burt  v.  Phice  .  .  . 
Bushel  V.  Miller  .  . 
Busst  V.  Giljbons  .  . 
Butcher  v.  Butcher 
Butler  V.  Manchester  Ry. 
Butterlield  v.  Forrester 
Byam  v.  Farr  .  .  . 
Byiie  V.  Moore  .  .  . 
Bj'water  v.  Richardson 


58 


Co 


.  62 

.  181 

.  194 

,  337 

.  229 
59,  71 

.  44 


Caffrev  v.  Darby 309 

Caird  'v.  Sime    " 235 

Calder  v.  Halket 150 

Caledonian    Ry.    Co.   v.    Sprott 

244,  252 
Calkins  v.  Sumner 102 


Callahan  r.  Bean     .     .     . 
Calloway  v.  Bleadon    .     . 
Cambridge  Bank  v.  Delano 
Camp  V.  Martin  .... 
Campbell  v.  Spottiswoode 


.  .  349 
.  .  225 
.  .  331 
.  .  94 
.  .  99, 
116,  117 

Cann  v.  Wilson  ....  325,  344 
Capital  Bank  v.  Henty  ...  85 
Cardival  v.  Smith  .  .  .55,  58,  59 
Carleton  v.  Franconia  Iron  Co. 

323,  324,  326 
Carpenters.  Hale    .     .  210,  213,  216 

I'.  Tarrant    . 92 

Carr  v.  Hood 116 

Carratt  v.  iNIorley  .  .  149,  150, 152 
Carrol  v.  Staten  "island  R.  Co.     336 


Carslake  v.  Mapledoram 
Carson  v.  Edgeworth 
Carstairs  v.  Taylor 
Carter  v.  Baker  .     . 
V.  Kingman 
V.  Towne      .     . 
Case  V.  Boughton  . 


.  .      93 

.  69,  70 

.  .    280 

.  .    228 
205,  210 

.  .    343 

.  .      34 


R, 


Case  V.  De  Goes  . 
t'.    Shepherd 
Cashill  V.  Wright  , 
Cass  V.  Boston  &  L 
Castrique  v.  Behrens 
Ciiswell  I'.  Worth    . 
Cavey  v.  Ledbitter  . 
Cecil  V.  Spurgur 
Central  Ry.  Co.  r.  Kisch 


Co 


322 


Ky- 


319 
258 
258,  277 
255 
34 
248 
206 
295 


V. 


Chambers  v.  Caulfield  . 
V.  Donaldson    . 
V.  Robinson       .     . 
Chapman  v.  Erie  R.  Co. 
V.  New  Haven  R.  Co. 
V.  Rothwell  .     . 
Charitable  Corp.  v.  Sutton 
Charless  v.  Rankin 
Charman  v.  Southeastern 

Co 

Chase  v.  Silverstone     . 
Chasemore  v.  Richards 
Chatfield  v.  Wilson 
Chatham  r.  Moffatt     . 
Chauntler  i'.  Robinson 
Cheesman  v.  Exall 
Chenowith  ?'.  Dickinson 
Chicago   Fruit   House   Co. 

Busch 

Chicago  Ry.  Co.  v.  Ross 
Chicago  &  Q.  R.  Co.  v. 

Patten    .... 
Cliilders  v.  Wooler 
Chrysler  v.  Canadaj' 
Churchill  v.  Hulbert 
V.  Siggers    .     . 
Cibber  v.  Sloper 
Cincinnati  Gazette  Co.  v.  Tim- 

berlake 108 

Ciriack  v.  Merchants'  Woolen 

Co 328,  337,  341 

Citizens'    Bank   v.    First   Na- 
tional Bank 28 

Claflin  V.  Commonwealth  Ins. 

Co 46 

Clark  V.  Chambers  .     .     .      342,  349 

V.  Cleveland 144 

V.  Downing 125 

V.  Molyneux 114 

V.  Rideout 205 


PAGE 

189,  190 

.     179 

290,  291 

293,  294 

56 

337 

261 

21 

32 

33,40 

176 

180 

10 

329 

348 

323 

308 

245 


in 


227 
331 

342 
34 
25 

194 
73 

176 


XVI 


CASES   CITED. 


PAGE 

Clarke  v.  Dickson  .  ...  41,  44 
».  Midland  Ry.  Co.  ...  320 
Clement  v.  Maddick  ....  235 
Clendon  v.  Dinneford  .  .  214,  215 
Cleveland  R.  Co.  v.  Terry  .  .  348 
Cliff  V.  Midland  Ry.  Co.      .  320,  321 

Clinton  v.  Myers 256 

Closson  V.  Staples 55 

Clothier  v.  Webster      .     .      312,  313 
Clough  V.   Northwestern  Ry. 

Co ".     .     210 

Clowes  V.  Staffordshire  Water- 
works Co 264 

Cluff  V.  Mutual  Ben.    Life   Ins. 

Co 130 

Coaks  V.  Boswell 21 

Codrington  v.  Lloyd    ....    153 

Coffin  V.  Coffin 104 

Cogel  V.  Knisele3'' 21 

Coggill  V.  Hartford  R.  Co.    .     .    212 

Coggs  V.  Bernard 291 

Cohen  v.  Frost 290 

Cole  V.  Cassidaj' 34 

V.  Curtis 67,  68 

V.  Maundy 196 

V.  Stewart 184 

V.  Turner 125 

Coleman  v.  N.  Y.  &  N.  H.  R. 

Co 348 

CoUen  V.  Wright    ...     20,  35,  36 

Collett «.  Foster 153 

Collins  V.  Denison      ....       46 

V.  Evans 34 

V.  Jackson       34 

Collis  V.  Selden      ....  326,  345 

Columbus  Gas  Co.  v.  Freeland      266 

Commonwealth  v.  Blanding     .      104 

V.  Carey      ....       160,  162 

V.  McLaughlin     ....      100 

V.  Randall 129 

V.  Rourke 182 

V.  Tuck 59 

Comp.  Insurance  Co.  v.  Tweed     343 
Comp.  London  Banking  Co.   v. 

London  Bank 183 

Connolh'  V.  Boston     ....      330 

Cook  r."'Hartle 217 

Coolidge  V.  Brigham  ....        23 
Coombs  V.   New   Bedford  Cord- 
age Co 328,  32D,  341 


PAGE 

Cooper  17.  Booth     .     .     .     .     .       73 

V.  Greeley  .... 

97 

V.  Harding      .     .     . 

152 

V.  Landon   .... 

20 

V.  Lovering     .     .     . 

26 

V.  McJunkin  .     .     . 

129 

V.  Utterback    .     .     . 

67 

V.  Willomatt    .     .     . 

214 

V.  Woollev      .     •     . 

207 

Coote  V.  Lighworth    .     . 

140 

Corbett  v.  Brown   .     .     . 

33 

Corby  v.  Hill     .... 

320 

Corey  v.  Bath    .... 

336 

Corning  v.  Burden      .     . 

224 

Cornish  v.  Abington    .     . 

46 

V.  Stubbs     .... 

195 

Coterell  v.  Jones     .     .     . 

79 

Coulter  V.  American  Exp 

.  Co.      338 

Coverdale  v.  Charlton 

.     .     185 

Coward  v.  Baddeley    .     . 

127,  128 

Cowley  V.  Pulsifer  .     . 

106,  107 

Cox  V.  Burbridge    .     . 

.     .     273 

V.  Cook    .... 

.     337 

Cragie  v.  Hadley     .     . 

.      34 

Craig  I'.  Hasell  .     .     . 

.      74 

Crawshay  v.  Thompson 

.      52 

Crepps  V.  Burden    .     . 

.     156 

Crone  v.  Angell  .     .    . 

.      86 

Crooker  ».  Bragg     .     . 

.    254 

Crowlej'  V.  Pacific  Mills 

.    341 

Crump  V.  Lambert  .     . 

26 

6,  267 

Culbertson  v.  Cabeen   . 

.      71 

Cundy  v.  Lindsay  .    . 

.     211 

Curtis  V.  Ayrault    .     . 

.    257 

V.  Mussey    .     .     . 

.    117 

Cutts  V.  Spring  .     .     . 

.     180 

D. 

Dabney  v.  Manning    ....    190 

Dain  v.  Coning 219 

D'Almaine  v.  Boosey  ....    240 
Dal  ton  V.  Angus      .     .  244,  246,  232 

Damon  v.  Moore 167 

Daniels  v.  Fielding  ....  73 
Danville  Turnp.  Co.  v.  Stewart  348 
Darley  Colliery  Co.  v.  Mitchell  242 
Dauenhauer «.  Devine  .  .  .  249 
Davey  v.  Southwestern  Ry. 
Co.'  •...."  317,  338 


CASES   CITED. 


XVU 


PAGE 

David  V.  Park 40 

Davies  v.  Jenkins 153 

'     V.  Mann      .     .     .     334, 335,  337 
Davis  V.  Detroit  R.  Co.     .     .     .    329 

'O.'tretcliell 25G 

V.  Keeves 113 

V,  Shepstone 117 

Davison  v.  Duncan       ....     108 

Dawkins  v.  Paulet 114 

•  V.  Rokeby   ": 103 

V.  Saxe-Weimar  ....  103 
Dawson  v.  Chamney  ....  290 
Dean  v.  Keate     ....      287,  297 

V.  Peel 164 

De  Crespigny  v.  Wellesley  .     .     115 

Delano  v.  Curtis 217 

Delegal  v.  Highley      ...      62,  63 
Denton  v.  Great  Northern  Rail- 
way Co 35 

Derry  v.  Peek 34 

Deslion  v.  Bigelow 212 

Dewey  v.  Osborn 189 

Dews  V.  Riley 148 

Deyo  V.  Van  Valkenburgh  .     .    137.. 
146, 154,  156 

Dezell  V.  Odell       215 

Dickinson  v.  Grand  June.   Canal 

Co 258 

Dickinson  v.  Worcester  .  .  .  264 
Dietz  V.  Langfitt     ...  69,  70 

Diiling  V.  Murray 255 

Dinks  V.  South  Yorkshire  Ry. 

Co 319 

Dixon  V.  Bell 288 

Dobell  V.  Stevens  .....  27 
Dodd  V.  Holme  ....       244,  245 

Dodson  I'.  Jleek 201 

Dodwell  V.  Burford  ....  125 
Doe  v.  Challis 189 

V.  Harlow 189 

Donald  v.  Suckling  ....  213 
Donaldson  v.  Haldane  .  .  .  301 
Donovan  v.  Donovan  ....       24 

Dooling  V.  Budget 116 

Doorman  v.  Jenkins  .  .  294,  308 
Dougherty  v.  Stepp     ....     191 

Dowling  V.  Allen 342 

.    V.  Hennings 249 

Doyle  V.  Hart 37 

V.  Russell 145 


PAGE 

Doyley  v.  Roberts 94 

Drew  V.  Conistock 130 

Driggs  V.  Burton     ...    59,  61,  61) 
Dublin  &  Wicklow  Ry.  Co.  v. 
Slattery     ....     317, 321,  338 

Duff  V.  Budd 295 

Duniiam  v.  Powers      .     .    102,    103 

Dunlop  V.  Knapp 313 

Dunn  V.  Wliite 34 

Dunston  v.  Paterson    ....     141 

Duval  V.  Davey 87 

Dyckman  v.  Valiente  ....    219 


E. 

Eager  v.  Grimwood     .     . 

Eaglesfield  i'.  Londonderry 

Eaines  v.  Salem  R.  Co.    . 

Earle  v.  Holderness     .     . 

Eaton  V.  Boston  &  L.  R.  Co, 

Kdwick  V.  Hawkes       .     . 

Einstein  v.  Marshall    .     . 

Electric  Tel.  Co.  v.  Brett 

Elizabeth  v.  Pavement  Co. 

Elliot  V.  Fitchburg  Ry.  Co 
V.  Pray 

Ellis  V.  American  Tel.  Co. 
V.  Andrews  .     . 
V.  Loftus  Iron  Co.     . 

Elwood  V.  Western  Union  Tel. 
Co 304 

Ely  V.  Ehle 221 

Embrey  v.  Owen        .    253,  254,  255 

Emerson  v.  Davies .     .     .      236,  238 

Emmons  v.  Pottle 98 

.  .  249 
.  .  199 
.  .  21 
.  .  34 
.  .  256 
V.  Walton 106 


Fairmount  Ry.  Co.  v.  Stutler  135,  345 

Faribault  v.  Sater 29 

Farns worth  v.  Garrard     .    .     .    297 

V.  Storrs 106 

Farrand  v.  Marshall    ....    243 


166 

30 

319 

217 

347 

194 

35 

228 

228, 

231 

254, 

255 

3'?4 

,    , 

304 

.  2G 

,  27 

, 

.275 

Eno  V.  Del  Vecchio 
Esty  V.  Wilmot 
Evans  v.  Carrington 
V.  Edmonds 
V.  Merriweather 


XVlll 


CASES  CITED. 


K 


Farrant  v.  Barnes  .    . 

V.  Thompson    . 
Farrar  v.  Beswick  .     . 
Farwell  v.  Boston  &  W 

Co 

Feital  v.  Middlesex  R.  Co. 
Fermentation  Co.  v.  Mans 
Ferren  v.  Old  Colony  il.  Co 
Fertich  v.  Michener    . 
Fields  V.  Rouse  .     .     . 
Filbert  v.  Hoff   .     .     . 
Fiquet  v.  Allison     .     . 
Firbank  v.  Humplirej's 
First   Baptist  Church  v 

R.  Co 

Fisher  v.  Bristow     .     . 

V.  Budlong  .     .     . 

V.  Prince      .     •     . 

V.  Thirkell  .  ,  . 
Fitzjolin  V.  Mackinder 
Fleming  v.  Davis  .  . 
Fletcher  r.  Smith  .  . 
Flint  r.  Pike  .  .  . 
Foley  V.  Wyeth  .  . 
Folsoni  V.  Marsh  .  . 
Forde  v.  Skinner  .  . 
Forster  v.  Forster  .  . 
Fortman  v.  Rottier 
Foster  v.  Charles    . 

V.  Essex  Bank 

V.  Mackinnon  .  . 
Fouldes  V.  Willougliby 
Foulkes  V.  JNIetropolitan 
Fowler  v.  Hollins  .  . 
Fox  V.  Mackreth  .  . 
Frazier  v.  Brown  .  . 
Freeman  v.  Cooke  .     . 

V.  Venner    .     .     . 
Freer  v.  Cameron    .     . 
French  v.  Vining    .     . 
Frenzel  v.  Miller     .     . 
Freto  V.  Brown  .     .     . 
Frierson  v.  Hewitt 
Frisbie  v.  Fowler    . 
Fritz  V.  Hobson 
Frogley  v.  Lovelace 
Fryer  v.  Kinnersley 
Fuller  V.  Fenner 

V.  Wilson    .     . 
Fulton  V.  Alexander 


Utica 


Rv 


PAGE 

296,  344 

184.  204 

.     219 


337 


328,  330 
.  337 
.  224 
,341 
129 
39 
18G 
219 
36 


267 

56 

21 

217 

320 

68 

256 

279 

107 

243 

237 

125 

167 

55 

46 

294 

41 

209,  219 

Co.  346 

210 

21 

258 

46 

47,  48 

323 

36 

21 

169 

71,  72 

91 

208 

193 

114 


27 
294 


G. 

Gabel  v.  Weisensee 
Gaffney  v.  Brown   .     . 
Gainsford  v.  Blackford 
Galena  R.  Co.  v.  Yarwood 
Gallwey  v.  Marshall 
Galvin  v.  Bacon 
Gannon  v.  Ilargadon 
Garr  v.  Selden   .     . 
Gassett  v.  Gilbert   . 
Gentry  v.  Madden  . 
George  v.  Johnson 
George  v.  Skivington 


Gerrish  v 
Co 

Gibbons  v.  Alison 
Giblin  V.  McMulh 


Giles  V.  Walker 
Gill  V.  Middleton    . 
Gilman  v.  Eastern  R. 

V.  Hill    .     .     . 
Gilmore  v.  Driscoll 


New  Market  Manuf. 

.     255 

.       73 

293,  294 


Co 


PAGE 
71 

320 

28 

338 

95 

221 

264 

103 

115 

215 

44 

344,  345 


94. 


257, 
102, 


214. 


247 

302 

329 

209 

243,  244,  245, 

246 

Glassey  v.  Hestonville  Ry.  Co.     352 

Glover  v.  Dwitcht  Manuf.  Co.    .     342 


Godefroy  v.  Dalton 
GofTin  V.  Donnelly  . 
Goldsmjd  v.  Tunbridge 

Com'rs  .... 
Goodenow  v.  Tappan 
Goodwin  v.  Cheveley 
Good3fear  v.  Railroad 
Gordiin  v.  Harper  . 
Gorham  v.  White  . 
Gorhani  Co.  v.   White 
Gott  V.  Pulsifer       . 
Gould  V.  Cayuga  Bank 
Graham  v.  Gautier . 

V.  Noble      .     . 

V.  Peat    .     .     . 
Grainger  v.  Hill 
Graves  v.  Dawson  . 
Gray  v.  Durland     . 

V.  James      .     . 

V.  Northeastern  Ry. 

V.  Russell     .     . 
Green  v.  Elgie    .    . 

V.  Sperry     .     . 
Greenland  v.  Chaplin 
Gregg  V.  Wyman    . 


■\\ 


ells 


73, 


Co 


.301 
104 


94. 


299. 


264 
103 
275 
232 
204 
229 
230 
116 
41 
301 
.  65 
.  180 
138,  199 
57,  59 
.  168 
.  227 
.  317 
.  239 
.  153 
.  217 
.  334 
.  337 


CASES  CITED. 


XIX 


PAGE 

Gregory  v.  Brunswick      .     .     77,  79 

V.  kill 131 

r.  Piper 192 

Griffin  v.  Chubb 70 

Griffith  r.  Hanks 40 

Griffiths  V.  Teetgen     ....  104 
Grigsby  v.   Clear  Lalve  Water 

Co 268 

Grill  I'.  General  Collier  Co.       .  293 

Grinnell  v.  Wells 105 

Griswold  v.  Sedgwick      .     .     .  142 

Gulf  Ry.  Co.  V.  Levy  ....  304 


H. 

Haas  V.  Damon  .... 
Hadlev  v.   Clinton    Import 

Co."  .... 
Hager  V.  Grossman 
Hale  V.  Fhilbrick  . 
Haley  v.  Case  .  . 
Hall  I'.  Corcoran     . 

V.  Feaiiiley 

V.  Hollander     . 
Hal  ley  v.  Stanton  . 
Halls  ('.  Thonipson 
Hamilton  v.  Boston 

V.  Eno  .  .  . 
Hampton  v.  Brown 
Hankinson  v.  Bilby 
Hanson  v.  lulgerly 

V.  McCue  .  . 
Hardcastle  v.  South  Yorksh 

Ry.  Co.       ... 
Hare  v.  Miller    .     , 
Harper  v.  Indianapolis  R.  Co 
Harris  v.  Brisco 

V.  Saunders 

V.  Smith  .  . 
Harrison  v.  Bush    . 

V.  Northeastern  Rv.  Co 
Hart  V.  Frame    .     . 

V.  Skinner   .     . 
Harvard  College  v.  Amory 
Harvey  v.  Epes 

V.  Watson   .     . 
Hastings  v.  Lusk     101,  102, 
Hatch  ?'.  Lane    .     . 
Hathaway  v.  Rice  . 


33 


18 


,     21G 

21   22 

'38 

31 

,  341 

337 

127 

105 

-    92 

23,  38 

3.37 

117 

3,  208 

85 

21 

258 

ire 

319 
105 
329 
74 
210 
183 
115 
316 
299,  300 
210 
308 
216 
175 
103,  104 
111 
129 


PAGE 

Hawkins  v.  Hawkins  .     . 

41 

Hawver  v.  Hawver      .     . 

87 

Hay  V.  Cohoes  ('0.       .     . 

282 

Hayes  r    Porter       •     .     . 

312 

V    Waldron       .     .     . 

256 

Haynes  r   Leland  .     .     . 

115 

V.  State 

130 

Hays  V.  Youngiove 

72 

Heaven  v.  Pender        .    325, 

340 

,  345 

Hedges  r.  Tagg      .     .     . 

164 

Heeruiance  v.  James    .     . 

172 

Henderson  v.  Broomhead 

102 

103 

Henley  v.  Lyme  Regis    , 

312 

,  346 

Henwood  v.  Hariison 

116 

Hewes  v.  Parkman 

217 

Hewlett  V.  Crucliley   .     . 

67 

Hibbard  v.  Thompson 

302 

Hickman  v.  Griffin      .     . 

02 

Hilberry  v.  Hatton      .     . 

210 

Hill  v.  Bateman      ... 

149 

r.  Taylor     .... 

138 

V.  Yates      .... 

159 

Hilliard  v.  Wilson  .     . 

73 

Hilton  r.  Granville      .     . 

243 

Hinton  v.  Dibdin       .     . 

293 

Hioi-t  v.  Bott      .... 

218 

Hoar  r.  Wood    .... 

102 

Hobson  V.  Todd      .     .     . 

191 

Hodges  V.  Windham  .     . 

179 

Hodgson  r.  Scarlett    .     . 

102 

Hogan  V.  Cresfan     .     .     . 

167 

0                       ""V^'V-^tAH                •                ■                • 

Hogg  V.  Ward   .... 

1.59 

Holbrook  v.  Connor    .     .     . 

27 

Holcomb  V.  Rawlyns  .     . 

190 

Holdnm  V.  Aver      .     .     . 

34 

Holland  v.  Anderson 

40 

Holley  V.  Mix    .... 

142, 

198 

Hollins  V.  Fowler    .     .     .     . 

208 

Hnll_y  r.  Boston  Gas  Co. 

349 

Holmes  v.  blather       .     .     . 

127, 

128 

V.  Northeastern  Ry.  Co. 

326 

Holt  V.  Parsons 

106 

Hooper  r.  Lane       .     .     .     . 

143 

V.  Trescott  .     .     .     .     . 

100 

Hoosac  Tunnel  Co.  v.  O'Brie 

n  . 

314 

Hopkins  V.  Crowe  .     .     .     . 

155 

V.  Tanqueray  .     .     .     . 

19 

Hopper  V.  Reeve     .     .     .     . 

126 

Houck  V.  Wachter       .     .     . 

270 

Houlden  v.  Smith  .      .     .     . 

151 

XX 


CASES   CITED. 


PAGE 

Houndsell  v.  Smyth    ....  319 

Houser  v.  Tully 2'JO 

Howland  v.  Day 130 

17.  Vi  cent 318 

Hubbard  v.  Lyman     ,     .     .     .  200 

Hughes  V.  Mactie 349 

Huizega  v.  Cutler  Lumber  Co.  342 

Hulett  V.  Swift 290 

Humphreys  v.  Slanfeild  ...  90 

Humphries  v.  Brogden     .      250,  251 

Hunting  v.  Russell      ....  181 
Hurdman   v.   Northeastern   Rv. 

Co '.  203 

Hurtert  v.  Weines  .     .     . 


Hutcheson  v.  Peck  . 
Hutchins  v.  Hutcliins 
Hyde  r.  Graham     . 
V.  Noble  .     .     . 
Hyman  v.  Nye  .    . 


172 


Si 

173,  174 
70,  79 
.    193 

.    205 
.    291 


I. 


Ihl  V.  Forty-second   St.  R.  Co. 

351 
Hott  v.  Wilkes  ....  275,  310 
Ilsley  V.  Nichols  ....  194,  199 
Indianapolis  K.  Co.  v.  Tyng      .      20 

Inman  t\  Foster 1)5 

Insurance  Co.  v.  Brame    .     .     .    136 

Ireson  v.  Pearman 300 

Irwin  V.  Dearman 170 

Isaack  v.  Clark 21G 

Israel  v.  Brooks 65 

Ives  V.  Carter 26 

V.  Hamilton 227 


Jackson  v.  Adams    . 

V.  Allen  .     .     . 

V.  Armstrong    . 

V.  Smithson 
James  v.  Campbell 

V.  Hodsen  .  . 
Jarmain  v.  Hooper  . 
Jarnigan  7>.  Fleming 
Jaynes  v.  Jaynes     . 


86 

28 

40 

272 

127 

31 

154 

115 

89 


PAGE 

Jefferies  v.  Great  Western  Ry- 

Co ".206 

Jeffery  r.  Bigelow  ....     22,  36 

Jefts  r.  York 20,  35,  36 

Jekyll  V.  Moore 103 

Jendwine  v.  Slade 25 

Jenings  v.  Florence      ....      73 

Jennings  i'.  Paine 102 

Joannes  v.  Bennett       .     .      114,  115 
Johanseu  v.  Davies      ....    316 

Johnson  v.  Brown 102 

I'.  Chambers 66 

V.  King 55 

i:  Smith 20 

V.  Thompkins 139 

V.  Wallower 46 

V.  Weedman 216 

V.  West  Chester  Ry.  Co.     .    338 

Joliffe  V.  Baker 34 

Jones  i".  Andover 336 

V.  Festiniog  Ry.  Co.       .     .    281 

V.  Pearce 231 

V.  Read 248 

V.  Williams 185 

Jordan  v.  Pickett 31 

Jorden  v.  Money 28 

Justice  V.  Wendell 221 


K. 


Kain  ».  Old 

.    .     19 

Kauffman  ?•.  Giesemer     . 

.     .    263 

Keene  r.  Kimball    .    .     . 

.     .    234 

Kelsey  v.  Murphy  .     .     . 

.     .      48 

Kendall  i'.  Stone     .     .     . 

.     .      50 

Kennard  v.  Willmore  .     . 

.     .    314 

Kennedy  v.  Green  .     .     . 

.     .    331 

Kerwhacker  v.  Cleveland  R. 

Co. 

276 

Kiefer  r.  Rogers      .     .     . 

.     .      40 

Kimball  v.  Harman      .     . 

.     .      79 

King  V.  Eagle  Mills     .     . 

.     .      17 

V.  Kline 

.     .    201 

Kintzing  v.  McElrath 

.     .      21 

Knight  V.  Gibbs  .... 

.     .    113 

v.  Legh 

.     .    183 

r.  Qnarles    .... 

.    .    301 

Kost  V.  Bender   .... 

.     .      29 

CASES   CITED. 


XXI 


PAGE 

Lafayette  R.  Co.  v.  Haffman  .  349 
Laidlaw  v.  Organ    ....     21,  22 

Lake  v.  King 105 

Lamb  v.  Stone 48 

Lamm  i\  Port  Deposit  Assoc.  .  34 
Lamphier  v.  Pliipos  .  .  299,  302 
Laucasliire   Wagou  Co.  v.  I'itz- 

hugh       . 214 

Lancester  Co.  Bank  v.  Smith  .  294 
Landon  v.  Emmons  ....  206 
Lane  v.  Boston  &  A.  R.  Co.      .   293, 

294 
28 

345 
20 

111 

203 


Langdon  v.  Doud  .... 
Langi'idge  v.  Levy  .... 
Larey  v.  Taliafferro  .  .  . 
Laughton  v.  Bishop  of  Sodor 
Laumer  v.  Francis 


Law  V.  Grant 21 

Lawlerv.  Androscoggin  R.  Co.  .    329 

Lawrence  v.  Obee 192 

Lea  r.  White 102 

Leather  Cloth   Co.  v.  American 

Leather  Cloth  Co 50 

Leavitt  v.  Fletclier 39 

Le  Clair  v.  St.  Paul  R.  Co.    .     .    329 

Lee  V.  Jones 20,  24 

V.  Riley 275 

Leland  v.  Tousey 179 

Lemaitre  r.  Davis 246 

Leverick  r.  Meigs  •     .     .      305,  306 

Lewis  V.  Clement 107 

V.  Jones 30 

V.  Levy 107,  108 

Leyman  r.  Latimer  ....  92 
Linington  v.  Strong  ....  40 
Lister  v.  Perrvman      .     .  54,  62,  69, 

159 

Little  1'.  Hackett 348 

Livingston  r.  McDonald  .      257,  204 

Lohdell  V.  Baker 23 

Lockhart  v.  Lichtenthaler 
Longmeid  v.  Holliday 
Looniis  V.  Terry       .     .  274, 
Lord  V.  Price       .... 
Lord  Advocate  v.  Blantyre 
Losee  v.  Buchanan  .     .     . 
Louisville  Canal  Co.  v.  JMui 


; 

348 

,  , 

345 

275, 

315 

, 

204 

, 

185 

278 

282 

•phy 

350 

PAGE 

Lovcjoy  V.  Murra'y       .     .     .     .217 
Lowtlicr  V.  Radnor       ....    150 

Lumby  v.  Allday 93 

Lumley  v.  Gye   ....   80,  81,  82 

Lunn  V.  Shermer 21 

Luther ».  Winnisimmet   .     .     .    257 

Lynch  v.  Knight 89 

V.  Nurdin 350 

V.  Smith 352 

Lysnej'  v.  Selby 27 

Lytle  V.  Bird 39 


M. 

McAleer  t'.  Horsey 
McAroy  v.  Wright  . 
McAvo}'  V.  Medina 
McClellan  v.  Scott  . 
McCombie  v.  Davies 
McCormick  v.  Seymou 

V.  Talcott     .     . 
McDaniel  ?•.  Baca    . 
Macdougall  r.  Knight 
McFadden  v.  Robinsot 
Macfadzen  v.  Olivant 
McGuire  v.  Grant    . 
Machin  v.  Geortmer 
McKinney  v.  Smith 
McLaughlin  v.  Cowley 
McLeod  r.  Jones 
JNIcQueen  v.  Fulgliam 
Madras  Ry.  Co.  v.  The  Zo 

Mahurin  v.  Harding  . 
Malachy  v.  Soper  .  . 
INIallory  v.  Leach  .  . 
Mangan  v.  Attcrton 
Manley  v.  Field  .  . 
Manning  v.  Wells  .  . 
Manvell  v.  Thompson  . 
Jlarble  v.  Cliapin  .  . 
Marsh  v.  Billings     .     . 

V.  Ellsworth      .     . 
Marshall  v.  Cohen  .     . 

V.  Davis  .... 

V.  York  &  Newcastle 

Martin  v.  Jordan  .  . 
I'.  Pavue   .  .  . 


26,  31 
45 
207 
40 
210 
226 
226 
50 
107 
26 
200 
243 
185 
257 
102 
195 
88,  89,  90 
mindar 

281 
29,  34,  36 
50,  51 
33,  41 
349 
164 
2L-0 
170 
87 
53 
102 
280 
221 


Rv 


Co. 


346 
26,  40 
.  164 


XXll 


CASES   CITED. 


Martin  v.  Riddle 
Martindale  v.  Hai-ris 
Marzetti  v.  Williams 
Mason  v.  Hill      .     . 
Mathews  v.  Hursell 
Ma'thews  v.  Beach 
Matts  V.  Hawkins    . 
Maunder  v.  Venn    . 
Maxwell  i'.  Palmerston 
May  V.  Burdett 


.  .  263' 

.  .  41 

.  .  289 

.  .  254 

.  .  183 

.  .  108 

.  .  249 

.  .  134 

.  .  202 

272,  273 


Western  Union  Tel.  Co. 

36,  304 
Mavhew  v.  Forrester   ....    307 

'  V.  Herrick 219 

Mavnard  v.  Boston  &  M.  \\.  Co. 

319 

Mead  v.  Bunn 40 

Medbiiry  v.  Watson  .  .  .  2G,  27 
Mellish  V.  Motteux  ....  44 
Mellor  V.  Merchants'  Manuf.  Co. 

34a 

V.  Watkins 195 

Mellors  V.  Shaw 329 

Meniburv  v.  Great  Western  Rv. 

Co.     ." 285,  340 

Merivale  v.  Carson  .  101,  116,  117 
Merrifield  v.  Worcester    .     256,  264, 

265 
Merritt  v.  Claghorn      ....    290 

V.  Robinson 21 

Mersey  Docks  v.  Gibbs     .     312,  313, 

331 

Messer  v.  Smi'h 39 

Metcalf  V.  Hess 290 

Metropolitan  Bank  v.  Pooley    .     56, 

63,  74 
Mever  v.  Schleichler    ....      91 

Mifhau  I'.  Sharp 268 

Millen  V.  Fawdrev 196 


Miller  c.  Foley   .     . 

.     ...    141 

V.  Parish 

.     .     .     .      91 

V.  Proctor     .     . 

.     .      308,  310 

Millington  v.  Fox   . 

.     .     .     .      52 

Mills  v.  Armstrong 

.     ...    348 

Milwaukee  Rv.  Co.  v 

Arms      .    293 

Miner  v.  Gilmour    . 

.     .      254,  256 

Mitchell  V.  .Jenkins 

....      70 

Mizner  v.  Kussell    . 

.     .     .     23,  33 

Mogul  Steamship  Co. 

V.  McGre- 

gor 

.     .    76,  80,  99 

Mohney  v.  Cook 
Moore  v.  Meagher 

V.  Mourgue  . 

V.  Robinson 

V.  Westervelt 
Morehead  v.  Fades 
Morelaud  v.  Atchison 
More}'  V.  Lockwood 
Morgan  v.  Booth 

V.  Marquis   . 

V.  Kavey 

V.  Skiddy     . 

V.  Vale  of  Neath 

V.  Varick 
Morison  v.  Salmon 
Morley  Machine  Co 

Morris  v.  Scott   . 
Mortin  v.  Shoppee 
Morton  v.  Gloster 
Mott  V.  Dawson  . 
Mowry  r.  Whitney 
Munster  v.  Lamb 
Murchie  v.  Black 
Murgoo  V.  Cogswell 
Murphy  v.  Deane 
Murra}'  v.  Hall  . 
Myers  v.  Dodd    . 


N. 


Rv 


Co. 


PAGE 

.  336 
.  89 
.  307 
.  183 
.  314 
.  26 
.  31 
.  227 
.  102 
.  219 
.  290 
34,  37 
.  330 
.  190 
.  52 
.  Lancaster 

226,  228 
.  72 
.  124 
.  3.37 
.  117 
.  224 

102,  104 
.  244 
.  202 

332,  339 

.  187 

275 


101, 


Nash  V.  Mosher 221 

Nelson  c.  Liverpool  Brewerv  Co. 

320 
Newcomb  v.  Boston   Protective 

Dept 333,  335,  336 

New  England  Trust  Co.  v.  Eaton 

310 
Newmannv.  Sylvester     ...      36 
New  York  R.  Co.  v.  Schuyler   .      49 
New  York  &  W.  Tel.  Co.  v.  Dry- 
burg  304 

Nichols  V.  Marsland     ....    279 
Nicholson »'.  Coghill    .     .     .     64,  66 

,  Nixon  V.  Jenkins 220 

Nolan  V.  Traber 87 

Norcross  v.  Norcross    ....    290 
I  Norris  v.  Litchfield       ....    335 


CASES   CITED. 


xxm 


PAGE 

Northeastern  Rv.  Co.  v.  Waiiless 

317,  338 
North  Penn.  R.  Co.  v.  Mahoney 

350 
Noyes  v.  Loriiig 36 


O. 


Oakes  v.  Spaulding  ....  272 
O'Brien  v.  Barry  ....  55,  58 
Odiorne  r.  Winldey  .  .  .  .226 
O'Donoghiie  r.  Hussey    .     .     .    Ill 

Ogbiiru  V.  Connor 2G3 

Olnistead  v.  Partridge  ....  67 
Olmsted  v.  Miller         ....      89 

Onslow  V.  Home 95 

Oppeuheini  v.  Wliite  Lion  Hotel 

Co 2IW,  291 

O'Reilly  v.  Morse  .  .  224,  226,  227 
O'Riley  v.  McClieeney     ...    204 

Ormrod  v.  Iliith 34 

Osborn  v.  Gillett 136 


Osborne  v.  Northwestern  Ry.  Co. 

340 
Osgood  V.  Lynn  R.  Co.  .  .  .  205 
Outcalt  V.  Darling  ....  205 
Overend  v.  Gibb    ....  310,  311 

Oviatt  V.  Sage 219 

Owen  V.  Henman 267 


P. 

Paddock  v.  Strobridge 
Page  V.  Parker  .     . 

V.  Robinson 
Palmer  r.  Concord 
Pangburn  r.  Bull    . 
Panton  v.  Williams 
Pappa  V.  Rose    .     . 
T'arham  v.  Randolph 
Park  V.  Hammond 
Parker  v.  Farle}'     . 
V.  Haworlh 
V.  Huntington 
Parsons  v.  Webb    . 
Parton  r.  Prang 
Partridge  v.  Gilbert 


.  23 
26,  76 
.  184 
.  117 
.  69 
61,  69 
314,  315 
.  40 
.  307 
56,  59,  63 
.  230 
.  76 
.  221 
.  234 
.     249 


PAGE 

Partridge  r.  Scott 244 

Pasley  v.  Freeman   18,  27,  45,  46,  47 

Pater  v.  Baker 50,  51 

Paterson  v.  Wallace 
Patterson  o.  Kirkland 
Pattison  v.  Jones  . 
Payson  v.  Caswell  . 
Peake  v.  Oldham  . 
I'eard  v.  Jones  .  . 
Pearse  v.  Coker 


21, 


33, 


Pease  v.  Chaytor 
Pedrick  v.  Porter 
Peek  ?;.  Gurney 
Penn  v.  Preston 
People  V.  Hubbard 
People's  Bank  v.  Bogart  . 
Percy  v.  Millaudon 
Perham  v.  Coney    . 
Perry  v.  Phipps 
Peyton  v.  London   . 
Philip  V.  Squire 
Phillips  V.  Homfray 

V.  Naylor  .  . 
Philpott  V.  Kelley  . 
Pickard  v.  McCormick 

V.  Sears  .     .     . 
Pickering  v.  Dowson 
Pike  V.  Fay   .     .     . 
Piper  ?».  Manney     . 
Pippet  V.  Hearn 
Pitt  i'.  Donovan 

V.  Pet  way    .     . 
Pitts  V.  Wemple 
Pittsburgh  R.  Co.  v.  Devinn 

V.  Vining    .     . 
Pixley  V.  Clark 
Place  V.  Minster 
Plavford  v.   United    Kingdo 

fcl.  Co.      .     .     , 
Pnlhill  V.  Walter 
Pollard  V.  Lj'on 
Policy  V.  Lenox  Iron  Works 
Pool  V.  Lewis      .     . 
Popplewell  V.  Pierce 
I'owell  V.  Evans 
Pratt  V.  Gardiner   . 
Prescott  V.  Wright 
Piideaux  v.  Bunnett 
Priestley  v.  Fowler 
Proctor  V.  Webster 


112, 


113, 


329 

21 

114 

58 

80 

94 

189 

150 

28 

48,  49 

185 

194 

21 

311 

216 

202 

247 

173 

135 

73 

214 

29 

215,  216 

44 

29 

290 

72 

50,  51 

219,  220 

.     227 

331 

349 

282 

79 


ey. 


m 

303,  304 
46,  47 
.  90 
.  217 
,  256 
.    272 


.  309 
,  314 
.  21 
.  25 
S28,  330 
.    105 


XXIV 


CASES  CITED. 


PAGE 

PAQB 

Pursell  V.  Horn       .     .     . 

.     .     120 

Ritchej'  V.  West    .     . 

• 

•         • 

302 

Puteibaugh  v.  Reasor 

.     .     348 

Roberts  v.  Connelly     . 

, 

,          , 

109 

Putnam  v.  Payne    .     .     . 

.     .     202 

V.  Smith      .     .     .    327, 

329 

340 

Pym  V.  Great  Northern  Ry. 

Co.    135 

V.  Wyatt     .     .     . 

,         , 

206 

Robinson  v.  Glass  .     . 

•         • 

41 

V.  May    .... 

•         • 

110 

Q. 

V.  Threadgill    .     . 

, 

289 

Rockwell  V.  Proctor    . 

,         , 

290 

Quartz  Hill  Mining  Co.  v.  Eyre  55, 71 

Rodgers  v.  Nowill  .     . 

.          • 

52 

Rogers  v.  Arnold    .     . 

,          , 

206 

Rohan  v.  Sawin  .     .     . 

158 

159 

R. 

Root  V.  King      .     .     . 

, 

117 

Rose  V.  Miles     .     .     . 

267 

269 

Radcliff  V.  Brooklyn    .     . 

.     243 

Ross  V.  Fedden  .     .     . 

,          , 

280 

Eadlj'  V.  London  &  Northwest- 

Rosworth V.  Wilkes    . 

, 

237 

ern  Ry.  Co 

.     339 

Rowbotham  v.  Wilson 

■         • 

242 

Ramsey  v.  Arrott    .     .     . 

.       61 

Rowley  v.  Rice  .     .     . 

. 

198 

Randell  v.  Trimen  .     .     , 

.     20,  3G 

Rush  V.  Cavenaugh     . 

» 

94 

Ravenga  v.  Mackintosh  . 

.       67 

Russell  V.  Tillotson     .    337, 

341, 

342 

Rawstron  v,  Taylor     .     . 

.     2.57 

Rutherford  v.  Williams 

47 

Raymond  v.  Andrews 

.     179 

Rylands  v.  Fletcher  203, ' 

278, 280 

282 

Eea  V.  Tucker 

.     176 

Read  v.  Edwards    .     .     . 

.     275 

Reading  v.  Royston     .     . 

.     180 

s. 

Reddie  v.  Scoolt     .     .     . 

.     170 

Redgrave  v.  Hnrd  .     .     . 

34,  40 

Safford  v.  GT'out     .     . 

• 

31 

Reese  Mining  Co.  v.  Smith  . 

.       34 

St.  Helen's  Smelting  Co. 

V.  Tip- 

Regina  v.  Ashwell  .    .     . 

.     183 

ping 201, 

202, 

205 

V.  Clarke     .... 

.     109 

Salem  Rubber  Co.  v.  Adams 

, 

39 

V.  Cotesworth  .     .     . 

.     120 

Sampson  v.  Henry 

, 

194 

V.  James 

.     122 

V.  Hoddiuott    .     .    253, 

254, 

255 

V.  Saddlers'  Co.    .     .     . 

.      41 

Sanborn  v.  Neilson 

, 

176 

V.  St.  George   .... 

.     122 

Sankey  v.  Alexander . 

, 

40 

V.  Veley 

.     112 

Sans  V.  Joerris  .... 

, 

115^ 

Rex  V.  Abingdon    .... 

.     104 

Sargent  v.           ... 

, 

109 

V.  Burdett 

.       99 
.    104 

V.  Gile 

212 

V.  Creevey 

Saunders  v.  Smith  .     . 

236, 

237 

Reynell  v.  Sprye     .... 

31,40 

Savacool  v.  Boughton 

. 

147 

Reynolds  v.  Kennedy       .     . 

.      65 

Savage  v.  Walthew     .     . 

, 

308 

Rhode  V.  Alley 

24,  40 

Savil  V.  Roberts      .     . 

70,  76 

V.  Annis 

.       40 

Sawin  v.  Guild  .... 

, 

231 

Rice  v.  Coolidge     .... 

.     102 

Sayles  v.  Briggs      .     .     . 

, 

59 

Rich  V.  Pierpont      .... 

.     302 

Schneider  v.  Heath     .     . 

, 

44 

Richard  v.  Scott      .... 

.     244 

Schrieve  v.  Stokes  .     .     . 

, 

245 

Richards  v.  Jenkins  .     .     . 

251,  252 

Schroyer  v.  Lynch  .     .     . 

, 

313 

V.  Rose 

.     24" 

Schunenian  v.  Palmer 

174, 

175 

Richardson  v.  Silvester    .     . 

.      48 

Schuylkill  v.  Copley   .     . 

41 

Riley  v.  Baxendale      .     .     . 

.     328  ' 

Schwenk  v.  Naylor 

, 

40 

V.  Home 

.     295 
.     100 

Scott  V.  Ely 

142 

Rist  V.  Faux 

V.  Shepherd      .     . 

343, 

344 

CASES   CITED. 


XXV 


PAGE 

PAOB 

Scott  V.  Stansfield  .     .     . 

.     .     101 

Solomon  v.  Vintners'  Co.      . 

.    247 

Sciibiier  v.  Beadi    129,  130 

,  131,    32 

Soniers  r.  Richards       .     .     . 

.      26 

Seaman  v.  Bigg       .     .     . 

.     .      95 

Somner  v.  Wilt 

73,  210 

V.  Nctherclift  .... 

102,  112 

South  V.  Denniston       .     .     . 

.    169 

Seeley  v.  Brush       .     .     . 

.     .     255 

Southcote  V.  Stanley    .     .     . 

.    322 

Seton  V.  Lafnne  .... 

.     20,  36 

Spangler  v.  Chapman  .     .     . 

.      34 

Severin  v.  Keppell       .     . 

.     .    221 

Sparhawk  v.  Union  Ry.  Co. 

.    267 

Seward  v.  The  Vera  Cruz 

.     .     135 

Spengler  v.  Davy    .     .     .     . 

.      74 

Shaul  V.  Brown       .     .     . 

.     .       72 

Springfield  v.  Harris    .     .     . 

.    256 

Shaw  V.  Berry   .... 

.     .     290 

Standard  Bank  v.  Stokes 

.    248 

Sheehan  v.  Sturges     .     . 

.     .     129 

Stanley  v.  Gay  lord  .     .     .     . 

.    221 

Sheekell  v.  Jackson     .     . 

.     .    109 

V.  McGauran     .     .     . 

.    40,  41 

ShefRl  V.  Van  Deusen 

.     .      87 

Stark  V.  Chitwood   .     .    . 

.      50 

Shelfer  v.  Gooding       .     . 

.     .    101 

Starr  v.  Jackson      .     .     .     . 

.    183 

Shelton  t".  Lake  Shore  Ry. 

Co.    194 

State  V.  Uixon    .... 

.    130 

Shergold  v.  Holloway 

,     .    146 

Stedmau  v.  Smith   .     .     . 

.    250 

Sherry  v.  Picken      .     .     . 

.     .    221 

Steele  i'.  Brannan    .     .     . 

.    107 

Shipley  v.  Fifty  Associates 

.     .  278, 

V   Southwick     .     .     . 

,      97 

281 

Stephens  v.  Baird    .     .     . 

.    215 

Shook  V.  Rankin     .     .     . 

.     .    241 

V.  Koonce     .... 

.    217 

Shorland  v.  Govett       .     . 

.     .    198 

V.  INIyers       .... 

.    124 

Sibley  v.  Aldrich     .     .     . 

.     .    290 

V.  Wilkins   .... 

.     .    146 

Simmons  v.  Lil_vstone  .     . 

.     .    219 

Stevens  v.  Hartwell      .     . 

.     .    115 

■e.  Mitchell    .... 

.     .      85 

V.  Midland  Ry.  Co.    . 

.      70 

Sims  V.  Eiland    .... 

.     .      34 

V.  Sampson  .... 

.     .    106 

Sinclair  v.  Eldred    .     .     . 

.     .      65 

Stewart  ?>.  Cole  .... 

.  74,  210 

Singer  Machine  Co.  v.  Wilson  .      52 

Stizell  V.  Reynolds       .     . 

.    .     86 

Singleton  v.  B<ilton      .     . 

.     .      52 

Stockdale  v.  Hansard  .     . 

.     .    104 

Slaughter  v.  Gerson      .     . 

.     .      39 

Stockley  v.  Hornidge  .     . 

.     .      78 

Sledge  V.  Scott    .... 

.    19,  34 

Stone  V.  Stevens      .     .     . 

.     .      72 

Smith  V.  Ashley      .     .     . 

.     .      98 

Storey  v.  Wallace   ,     .     . 

.    .    102 

V.  Chadwick     .     .     . 

24,  27,  47 

Story  V.  Holcombe  .     .     . 

.     .    240 

V.  Countryman      .     . 

.     .      21 

Stowe  V.  Thomas     .     .     . 

240,  241 

V.  Higgins    .... 

.     .    110 

Strauss  I'.  Francis   .     .     . 

.     .    116 

V.  Hughes    .... 

.     .      21 

Strickland  v.  Parker    .     . 

.     .    219 

V.  Kay 

.     .      32 

Stroebel  v.  Whitney    .     . 

,     .      86 

V.  Kenrick   .... 

.     .    279 

Strong  V.  Strong      .     .     . 

.     .      41 

V.  Land  Corporation 

.    28,  32, 

Stroyan  i\  Knowles     .     . 

.     .    245 

40,  42,  43 

Suggs  V.  Anderson  .     .     . 

.     .    129 

V.  London  Pocks  Co. 

.     .    325 

Sullivan  v.  Union  PaciticRy 

Co. 

V.  O'llara     .... 

.     .    257 

136 

V.  Midhind  Ry.  Co,    . 

.     .    267 

Sutton  V.  Huffman  .     .     . 

.     .    166 

V.  Smith 

.   91,  348 

V.  Johnstone     .     .     . 

.     .      65 

V.  Stewart    .... 

.     .      92 

V.  Wauwatosa  .     .     . 

.     .    336 

V.  Southwestern  Ry.  Co.     .    343 

Swain  v.  Stafford    .     .     . 

.     62,  63 

V.  S}'dney     .... 

.     .    152 

V.  Mizner     .... 

.     .    194 

V.  Tett 

.     .    189 

Sweeney  v.  Baker  .     .     . 

.     .    117 

V.  Thackerah    .     .     . 

.     .    245 

Sweeny  v.  Old  Colony  R.  C 

0.  .  316, 

Smith  Manuf.  Co.  v.  Sprague    .    231 

320,  321, 

322,  338 

Snow  V.  Allen     .... 

.     .      67 

Sweet  V.  Benning    .     .     . 

.     .    236 

XXVI 


CASES  CITED. 


PAGE 

Sweet  V.  Sweet 236 

Swett  V.  Cutts    ....      258,  264 
Swift  V.  Winterbotham    ...      48 

Swoboda  v.  Ward 342 

Sykes  v.  Sykes 52 


Talmadge  v.  Scudder  .... 
Tarltou  i'.  Fisher    .     .     .      145, 

Tarver  v.  State 

Taylor  v.  Cnrew  Manuf.  Co. 
Tebbutt  V.  Bristol  &  E.  Ry.  Co. 

Terry  v.  Hutchinson    .... 

Terwilliger  v.  "Wands  .     .     .     8i 
Tharsis    Sulphur   Co.  v.   Loftus 


Thickstun  v.  Howard 
Thomas  v.  Churton 

V.  Quatermaine 

V.  Winchester  . 
Thompson  v.  Ross   . 

V.  Shackell  .  . 
Thorley  v.  Kerry  . 
Thorogood  v.  Bryan 

V.  Robinson 
Thrussell  v.  Handyside 


Thurston  v.  Hancock  . 
Tickell  V.  Read  .  .  . 
Tierney  v.  Frazier  .  • 
Tilghman  v.  Proctor  . 
Tillett  V.  Ward  .  .  . 
Timni  v.  Bear  .  .  . 
Timothy  v.  Simpson  . 
Todd  V.  Flight  .  .  . 
Toledo  R.  Co.  v.  Conroy 
Tolle  v.  Correth  .  . 
Tompkins  v.  Halleck  . 
Tootle  V.  Clifton  .  . 
Trudo  V.  Anderson  .  . 
True  V.  International  Tel 
Trusler  r.  Murray  .  . 
Tuberville  v.  Savage  . 
Tuck  V.  Downing  .  . 
Tuff  V.  Warman  .  . 
Tullidgn  r.  Wade  .  . 
Tunstall  v.  Christian   . 


134, 


325, 
243, 


Co 


337, 
244, 


221 
147 
123 
341 

326 
165 

;,  89 

314 
290 
103 
340 
344 
222 
116 

97 
348 
219 
340, 
341 
244 
132 
149 
224 
275 
256 
161 
320 
329 
256 
234 
263 
221 
303 
238 
123 

38 
339 
200 
246 


Turner  v.  Ambler 

V.  Harvey    . 

V.  Sullivan  . 

Turpin  v.  Remy 

Tvler  V.  Boston  . 


PAGE 

61,  69 
21,  22 
.  107 
.  72 
.    229 


u. 


Ullee,  in  re     .     .     . 
Underliill  v.  Welton 
Upton  V.  Tribilcock 
Usill  V.  Hayes    .     . 


.  169 
86,  90 
.  30 
,    108 


Van  Brunt  ?,'.  Schenck  ...  189 
Vanderbilt  v.  Mathis  .  66,  69,  70 
Van  Epps  v.  Harrison  ...  26 
Van  Wyck  v.  Aspinwall  .  .  .111 
Vaughan  v.  Taff  Vale  Ry.  Co.  .  280, 

281 

Venard  v.  Cross 271 

Vernon  v.  Keys  ....  25,  39 
Victorian  Rys.  Comm'rs.  v.  Coul- 

tas 88,  338 

Vincent  I'.  Cornell 212 

r.  Stinehour 128 


w. 

Wait  V.  Richardson      ....    188 
Waite  V.  Northeastern  Ry.  Co.  349, 

351 
Wakefield  v.  Buccleuch   .     .     .     243 
Wakeman  r.  Robinson     .     ,     .    127 
Walker  v.  British  Guarantee  As- 
soc  308 

V.  Cronin  ...  80,  82,  134 
Walsham  v.  Stainton  ....  78 
Walter  v.  Sample 68 

V.  Selfe   . 266 

Walton  I'.  Potter 226 

Ward  V.  Clark 86 

V.  Hobbs 22 

Warner  v.  Miller    .....      89 
Warren  v.  Swett 331 


CASES  CITED. 


XXVll 


PAGE 

Wason,  Ex  parte 104 

V.  Walter     .     105,  107,  109,  112 
Waterburv   Brass  Co.   v.  Miller 

227 

Watkin  v.  Hall 115 

Watling  V.  Oastler       ....    329 

Watson  V.  Gray 248 

V.  McCarthy 93 

Weaver  v.  Eureka 257 

V.  Ward 127 

Webb  V.  Beavan      ....     85,  90 

V.  Hill G5,  6G 

Webber  v.  Clossoii       ....     275 

Weber  v.  Weber 40 

Webster  v.  Bailey 43 

V.  Hudson  River  R.  Co.     .     348 
Weedon  v.  Timbrell    .     .     .  175,  176 

Weld  V.  Oliver 219 

Welfare    v.  London   &   B.    Ry. 
Co.  322 

Wentnan  v.  Ash 87 

Wennhak  v.  IMorsan  ....  87 
Wesson   v.  Washbuni    Iron  Co. 

268  269 

West  V.  Nibbs 199 

V.  Wright 40 

Western  Bank  v.  Addie  .  .  37,  41 
Western  Union  Tel.  Co.  i'.  Ca- 

rew 303,  304 

Weston  V.  Arnold 248 

Whalley     v.     Lanca^hire      Ry. 

Co.  "     263 

Wheatlev  v.  Chrisman     .       254,  264 

Wheatly  v.  Harris 201 

Wheaton  v.  Peters 236 

V.  Rogers 235 

Wheelden  v.  Lowell  ....  194 
Wheeler  v.  Wason  Manuf.  Co.  341 
Wheldon  v.  Chappel  ....  337 
Whistler  v.  Ruskin      ....     116 

White  V.  Bnioks 219 

V.  Carroll 102 

V.  Demary 222 

V.  Garden" 211 

V.  Madison  ....    20,  35,  36 
Whitehead  v.  Grcetham  ...    301 

Whiting ».  Hill 38 

Whitman  Mining  Co.  i'.  Tritle     221 
Whitney  v.  Allaire      ....      41 
V.  Boardman 44  1 


PAGB 

63 
230 
313 

17 
237 
290 


Whitney  v.  Peckham  .  .  . 
Wliitteniore  v.  Cutler  .  . 
Wiggins  V.  Hathaway  .  . 
Wilder  v.  De  Cou  .... 
Wilkins  v.  Aiken    .... 

V.  Earle 

Wilkinson  v.  Fairrie   ....     326 

V.  Haygarth 187 

V.  Proud 250 

Willans  v.  Taylor 66 

Williams  v.  Chadbourne  .     .     .     219 
V.  Churchill      ...       341,  342 

V.  Clough 329 

V.  Esling 192 

V.  Great  Western  Rv.  Co.  317 
V.  Hill  ....'...  89 
V.  Smith      .     .     .   152,  153,  154 

V.  Spurr 21 

Willis  V.  Vallette 331 

Wilmarth  v.  Burt 149 

Wilson,  Ex  parte  .....      90 

Wilson  V.  Brett 293 

V.  Goit 88 

V.  New  Bedfoi  d    .     .     .  258,  282 

V.  Newberry 280 

V.  Read 219 

Wilton  V.  Webster  .  .  175,  177 
Winsnuire  ?•   Greenbank  .      173,  174 

Winter  v.  Henn 167 

Winterbottom  v.  Derby   .     .     .     270 

V.  Wright 345 

Wolf  V.  Door 313 

V.    Western      Union     Tel. 
Co.  .304 

Wood  V.  Clapp 302 

V.  Copper 306 

V.  Leadbitter 193 

V.  Waud      ....       255,  256 
Woodley   v.   Metropolitan    Ry. 

Co.  "      340 

Woodman  v.  Hubbard  .  .  .  337 
Woodward  v.  Morrison  .  .  .  229 
Woolf  V.  Chalker  ....  201,  316 
Wootton  ».  Dawkins  .  .  .  .  275 
Worcester  v.  Marchant    .     .     .     169 

Wren  t'.  Weild 51 

Wright  V.  Court 143 

V.  Maiden  R.  Co.       .       349,  350 

Wyatt  )•.  Buell 102 

Wyndham  v.  Wycombe  .     .     .    176 


XXVlll 


CASES   CITED. 


Y. 

PAGE 

Yale  r.  Saunders 217 

Yarmouth  v.  France    ....  340 

Yates  V.  Lansing     ....  314 

Yeates  v.  Prior 25 

York  &  North  Midland  Ry.  Co. 

V.  Hudson 311 

V.  Pease 106 


PAGE 


Young  V.  Miller 91 

V.  Spencer 184 


Zeliff  V.  Jennings    . 
Zoebisch  v.  Tarbell 


91 
325 


i:n^troductio]N'o 


INTRODUCTION. 


For  the  purposes  of  one  first  approaching  the 
subject,  the  term  '  tort '  cannot  be  defined  in  language 
not  itself  needing  definition.  Indeed,  no  definition, 
helped  out  even  bj  explanation,  can  convey  a  full 
conception  of  the  meaning  of  such  an  expression  as 
'  the  law  of  torts  ; '  nothing  short  of  careful  study  of 
the  specific  torts  of  the  law  will  suffice.  The  diffi- 
culty grows  out  of  the  fact  that  there  is  no  such  thing 
'yas  a  typical  example,  an  actual  tort,  that  is  to  say, 
which  contains  all  the  elements  entering  into  every 
other.  One  is  as  perfect  as  another ;  and  each  of 
the  torts  of  the  law  differs,  not  merely  in  point  of 
fact  from  the  rest,  but  in  its  legal  constituents  as 
well. 

Still,  it  is  important  to  get  some  helpful  conception, 
if  possible,  of  the  meaning  of  the  term  before  entering 
upon  the  study  of  the  particular  torts.  And  fortunately 
there  are  some  things  in  common  to  all ;  things  which, 
if  not  at  first  sufficiently  intelligible,  may  be  explained 
in  a  way  to  make  the  matter  instructive  to  the  begin- 
ner, and  prepare  him  the  better  for  the  more  special 
study  of  the  subject  to  follow. 

Putting,  then,  common  features  together  in  the  way 
of  definition,  a  tort  may  be  said  to  be  a  breach  of  duty 


4  INTRODUCTION. 

/fixed  by  municipal  law  for  which  a  suit  for  damages 
can  be  maintained.^  Each  of  the  parts  of  the  defini- 
tion, however,  will  need  explanation. 

Consider  in  the  first  place  the  phrase  '  breach  of 
duty.'  What  does  that  mean  ?  The  answer  cannot 
be  given  directly  and  shortly.  There  is  no  constant 
factor  in  the  '  duty  ' ;  what  would  constitute  a  breach 
of  duty  in  the  case  of  one  tort  would  not  constitute 
it  in  the  case  of  another.  Still,  the  various  duties 
involved  in  the  different  torts  are  capable  of  being 
/grouped  into  some  three  or  four  classes,  upon  a  basis 
\not  wanting  in  instructiveness. 

/   In  one  of  these  classes  the  breach  of  duty  is  stated 

(in  terms  apparently  significant  of  an  actively  guilty 

Wate  of  mind.     Tliis  phase  of  the  breach  of  duty  may 

f  be  manifested  in  eitlier  of  two  forms  ;   in  one,  the 

breach  consists  in  the  doing  an  act  fraudulently  ;  in 

the  other,  in  doing  it  maliciously.     And  without  the 

facts  upon  which  the  conception  of  fraud  or  malice  is 

predicated,  there  is  no  redress  in  damages ;  that  is, 

there  is  no  tort. 

It  should  be  said,  however,  and  the  fact  should  be 
well  observed,  that  the  legal  way  of  stating  a  conclu- 
sion from  facts  is  here  and  elsewhere  often  stronger 
than  the  facts  in  themselves  would  seem  to  justify. 
The  law  looks  much  to  manifestations,  and  then,  it 
may  be,  declares  that  they  show  fraud,  or  malice,  or 
negligence,  and  will  hear  no  denial  while  the  particu- 

1  The  adjective  '  tortious'  is  sometimes  used  for  convenience  of  cases 
in  which  there  could  be  no  action  for  damages  ;  as  e  g.  to  express 
wrongful  conduct.  But  the  common  acceptation  of  the  term  '  tort,' 
especially  in  the  expression  '  law  of  torts,'  is  that  of  a  wrong  for  which 
a  suit  for  damages  can  be  maintained. 


INTRODUCTION.  5 

• 

/lar  facts  stand.  In  other  words,  the  law  often  makes 
use  of  terms  in  a  sense  different  from  that  in  which 
they  are  used  in  ordinary  speech,  and  accordingly  has 
\  a  dictionary  of  its  own. 

Subject  to  this  observation,  fraud  or  malice  must 
then  be  said  to  be  an  element  of  the  right  of  action  in 
the  first  class  of  cases.  But  it  may  be  observed  that, 
while  the  law  of  torts  presents  a  very  clear  conception 
of  fraud  and  its  consequences,  it  has  not  determined, 
with  much  precision,  what  constitutes  malice  ;  ^  indeed 
the  law  still  hardly  knows  how  to  deal  even  with 
admitted  malice  in  respect  of  civil  liability,  outside  of 
a  few  cases.  As  yet  it  is  only  feeling  its  way,  and 
that  in  no  perfectly  assured  direction.^ 

Fraud  as  a  necessary  element  of  liability  in  actions 
for  tort  is  confined  almost  entirely  to  cases  of  misrep- 
resentation ;  malice  is  a  necessary  element  in  actions 
for  malicious  prosecution,  slander  of  title,  so-called,^ 
and  for  interfering  with  contracts  ;  ^  it  is  also  insepar- 
able from  unlawful  conspiracies.  Malice,  further, 
may  become  a  turning-point  in  actions  for  defa- 
mation, upon  a  defence  that  the  occasion  of  the 
publication   made   it  presumptively   lawful ;    but   its 


^  See  chapter  ii.  §  4.  This,  however,  may  be  said,  that  malice 
may  be  found  cither  in  the  wrongful  motive,  or,  in  many  cases,  in  a 
wrongful  act  whatever  the  motive.  Possibly  it  may  have  different 
meanings  in  different  connections,  as  it  has  in  the  criminal  law. 

2  Comp.  Boweu  v.  Hall,  6  Q.  B.  Div.  333,  with  Chasemore  v.  Kich- 
ards,  7  H.  L.  Cas.  349,  388  ;  L.  C.  Torts,  525. 

3  This  subject,  hovvever,  belongs  on  the  whole  to  fraud,  as  will  be 
seen  in  chapter  i. 

*  The  last-named  wrong  refers  to  cases  like  Bowen  v.  Hall,  6  Q.  B. 
Div.  333,  following  and  explaining  Lumley  v.  Gye,  2  El.  &  B.  216, 
and  L.  C.  Torts,  306.     See  chapter  iv. 


6  ■  INTRODUCTION. 

presence  or  absence  is  immaterial  to  the  right  of 
action  itself.^ 

Another  step  will  bring  the  student  to  a  class  of 
cases  in  which,  though  there  is  often  a  manifest  inten- 
tion on  the  part  of  the  defendant  to  do  the  very  thing 
for  which  he  has  been  sued,  the  law  ordinarily  takes 
no  account  of  his  motive  or  state  of  mind,  supposed 
or  actual,  so  far  as  the  right  of  action  is  concerned. 
The  plaintiff's  right  of  redress  no  longer  depends 
upon  his  showing,  in  any  way,  that  the  defendant  did 
the  act  in  question  from  wrongful  motives,  or  gener- 
ally speaking,  even  intentionally  ;  and  hence  the  want 
of  such  motives,  or  of  intention,  is  no  defence.  Nor 
indeed  is  negligence,  or  the  want  of  negligence,  any 
necessary  part  of  the  case. 

Here,  then,  is  a  class  of  cases  in  which  the  tort  con- 
sists in  the  breach  of  what  may  be  called  an  absolute 
duty  ;  the  act  itself  (in  some  cases  it  must  have  caused 
damage)  is  unlawful  and  redressible  as  a  tort.  The 
cases  in  which  this  is  true  are,  speaking  generally, 
cases  of  violence  apparently  about  to  be  committed,^  or 
actually  committed,  upon  one's  person,^  restraint  of 
liberty,*  interfering  with  the  relation  of  master  and 
servant  with  notice  thereof,^  interfering  in  one  way  or 
another  with  the  possession,^  ownership,^  or  enjoy- 
ment ^  of  property,  and  failing  to  keep  safely  danger- 
ous things. 

1  Actions  for  defamation  (slander  or  libel)  may  thus  be  treated  as 
marking  a  transition  from  the  first  to  the  second  phase  of  tort. 

2  Assault.  3  Battery.  *  False   imprisonment. 
^  E.  g.  enticing  away  or  seducing  a  servant. 

8  Trespass  to  lands  or  goods. 

'  Conversion,  '  trover '  in  the  old  law,  a  wrong  relating  to  goods. 

8  E.  g.  nuisance. 


INTRODUCTION.  7 

One  other  phase  of  the  breach  of  duty  remains. 
From  regarding,  first,  a  positive  mental  attitude  of  the 
defendant,  nominally  at  least;  and  secondly,  disre- 
garding the  existence  or  non-existence  of  such  an 
attitude  ;  the  law,  thirdly,  passes  over  to  cases  in 
which  it  regards,  as  an  essential  fact,  what  may  be 
considered  as  a  negative  mental  attitude.  In  the  class 
of  cases  now  reached,  the  law  takes  account  of  the  fact 
that  the  defendant  has  not  directed  proper  attention 
to  danger  attending  some  act  or  omission  of  his,  or,  if 
he  has,  that  he  has  not  conducted  himself  as  he  ous:ht 
to  have  done  in  the  situation.  He  has  failed,  e.  g.  to 
exercise  due  care  ;  and  the  failure,  assuming  damage 
to  have  followed,  constitutes  a  tort.  This  phase  of 
the  breach  of  duty  is  the  domain  of  negligence.^ 

The  meaning  of  the  first  part  of  the  definition  is 
now,  it  is  hoped,  somewhat  cleared  up.  The  result 
may  be  shortly  put  thus  :  Looking  to  one  class  of 
cases,  a  tort  is  (so  far)  a  breach  of  duty  effected  by 
fraud  or  by  malice.  Looking  to  a  second  class,  a  tort 
is  a  breach  of  duty  absolute,  regardless  of  fraud,  mal- 
ice, intention,  or  negligence.  Looking  to  a  third 
class,  a  tort  is  a  breach  of  duty  effected  by  negli- 

1  The  law  does  not,  in  point  of  fact,  stop  to  consider  the  actual  state 
of  mind  of  the  defendant  as  a  ground  of  liability  in  actions  for  negli- 
gence  ;  and  the  text,  it  will  be  seen,  only  says  that  negligence  '  may 
be  considered  as  a  negative  mental  attitude.'  It  is  believed,  however, 
that  there  is  always  in  fact,  to  some  extent,  a  negative  or  passive  state 
of  mind  in  cases  of  negligence  ;  the  mind  has  not  been  duly  aroused  to 
the  danger,  or  if  the  defendant  is  sensible  of  the  situation,  he  has  not 
duly  exerted  his  will  to  avoid  harm.  And  it  is  believed  that  it  is 
useful  and  instructive  to  call  attention  to  this.  The  very  etymology 
of  '  negligence  '  is  instructive,  as  far  as  it  goes.  '  Neglegere '  =  '  nec- 
legere  ; '  not  to  choose,  not  to  exercise  the  proper  mental  faculties. 
But  the  actual  standard  of  the  law  is  external. 


8  INTRODUCTION. 

gence.^  These  divisions  of  the  breach  of  duty  will  be 
found  to  cover  all  cases  of  tort  in  the  law  as  it  now 
exists. 

Further,  it  may  be  remarked  that  the  breach  of 
duty,  in  whatever  form,  may  be  committed  by  any  one 
having  natural  capacity.  The  law  of  torts  affords  a 
strong  contrast,  in  this  particular,  both  to  the  law  of 
contract  and  to  the  criminal  law.  Liability  in  con- 
tract depends,  indeed,  upon  capacity  to  contract ;  but 
want  of  such  capacity  may  be  either  natural  or  arti- 
ficial. One  must  be  of  sound  mind  and  at  least 
twenty-one  years  of  age  to  bind  oneself  by  contract.^ 
Liability  under  the  criminal  law  depends  also  upon 
the  existence  of  capacity  to  commit  crime  ;.  but  want 
of  this  too  may  be  natural  or  artificial.  A  person 
must  be  of  sound  mind  and  at  least  seven  years  of  age 
to  be  subject  to  punishment  under  the  criminal  law. 

There  may  be  difficulty  sometimes  in  applying  the 
rule  of  natural  capacity ;  but  tlie  difficulty  can  hardly 
arise  except  in  cases  requiring  proof  of  fraud,  malice, 
or  negligence,  and  then  as  a  rule  only  in  suits  against 
infants.  Where  the  doing  of  the  act  creates  of  itself 
liability,  that  is,  where  there  is  a  breach  of  the  absolute 
duty,  a  defence  of  incapacity  would  be  contrary  to  the 
fact,  and  could  not,  it  seems,  be  allowed.  The  fact 
that  the  defendant  was  a  person  of  unsound  mind,^  or 

^  It  should  be  observed,  however,  that  the  result  shows  only  the 
outward  aspect  of  the  breach  of  duty.  For  the  deeper  meaning,  the 
student  must  await  the  examination  to  be  made  of  the  specific  torts  of 
the  law.  It  could  not  be  shown  here  without  making  this  introduction 
prolix,  and  going  over  ground  to  be  examined,  necessarily,  later. 

2  Infants'  contracts  for  necessaries  are  an  exception. 

®  Quaere,  in  regard  to  civil  liability  for  an  act  committed  by  a  mad- 
man in  a  frenzy,  though  the  act  was  intended  ?     In  some  cases  nece.s- 


INTRODUCTION.  9 

a  child  of  tender  years,  would  not  be  material.  It 
would  be  enough  that  the  act  done  was  of  the  will. 

Cases  requiring  proof  of  fraud,  malice,  or  negligence 
would  perhaps  create  no  difficulty  where  the  defend- 
ant was  a  person  so  unsound  of  mind  as  not  to  be 
accountable  to  the  criminal  law ;  an  action  of  tort 
could  hardly  be  maintained.  A  madman  may,  indeed, 
be  guilty  of  fraud  or  malice  in  some  sense  (cunning, 
it  is  well  known,  is  a  common  trait  of  the  insane), 
but  not  in  the  sense  in  which  it  would  be  necessary  to 
create  liability,  as  e.  g.  in  an  action  for  deceit  or  for 
malicious  prosecution. ^  And  clearly  a  madman  can- 
not exercise  diligence.  A  person  sane  enough  to  be 
accountable  to  the  criminal  law  would  probably  be 
liable  for  any  kind  of  tort. 

Infancy  is  more  likely  to  give  occasion  for  serious 
difficulty.  An  infant  of  sound  mind,  twenty  years  of 
age,  or  much  less,  is  liable  for  any  tort  for  which  an 
adult  might  be  sued ;  an  infant  of  five  years  could 
seldom  be  liable  in  damages  for  negligence,  and  of 
course  would  never  be  sued  for  torts  requiring  proof 
of  fraud  or  malice.  But  within  these  extremes,  there 
is  a  region  of  uncertainty,  in  which  the  courts,  if 
called  upon  to  act,  must  act  according  to  the  best 
light  they  may  have  in  each  particular  case ;  the 
question  of  capacity  being  probably  a  question  of 
fact.2 

sity  would  excuse  a  tort  by  any  one,  as  where  a  person  is  chased  upon 
another's  laiul  by  a  savage  beast.  But  suppose  A  threatens  to  kill  B 
unless  B  will  trespass  upon  C's  land,  and  B  does  the  act ;  will  it  affect 
the  case  that  B  is  an  infant,  insane,  or  idiotic  ? 

1  Corap.  Emmens  v.   Pottle,    16    Q.  B.  Div.  354,  356,  Lord  Esher. 

2  There  is  a  difficulty  of  another  kind  touching  the  liability  of 
infants,  and  that   is  where  what  would  be  a  tort  in  other  cases,  e.  g.  a 


10  INTRODUCTION. 

Consider  in  the  next  place  that  the  duty  in  question 
is  '  fixed  by  municipal  law.'  This  will  serve  to  distin- 
guish tort  from  contract ;  for  in  contract  the  duty  is 
commonly  fixed  by  the  parties,  in  the  terms  of  the 
agreement.  But  this  is  not  always  the  case ;  it  hap- 
pens not  infrequently  that  the  parties  to  a  contract 
leave  terms  to  be  supplied  by  the  evidence  of  custom 
or  by  the  law  itself.  In  such  cases  a  violation  of  the 
term  so  to  be  supplied  might  make  a  case  of  tort  or 
of  breach  of  contract,  at  the  election  of  the  injured 
party ;  the  duty  being  fixed  by  law,  or,  what  would 
come  to  much  the  same  thing,  by  custom,  the  breach 
could  be  treated  as  a  tort.  Thus,  if  a  common  car- 
rier at  Chicago  were  to  contract  with  A  to  deliver  at 
New  York  wheat  put  into  the  carrier's  hands,  and  fail 
to  do  so,  he  would  be  presumptively  liable  to  A,  as  for 
a  tort,  or  for  breach  of  contract,  at  A's  election. 

A  breach  of  an  implied  term  of  a  contract  may 
then,  it  seems,  be  treated  as  constituting  a  tort  when- 
ever the  term  is  supplied  by  law  or  by  custom ;  but 
this  is  not  now  a  matter  of  as  much  importance  as  it 
once  was  ^  in  regard  to  the  subject  under  considera- 
tion. Nor,  indeed,  was  it  of  first  importance  formerly, 
for  the  injured  party  had  a  clear  right  of  action  for 
breach  of  contract,  at  all  events  ;  and  the  question 
was  only  one  of  the  preferable  remedy.     Still,  it  is 

fraudulent  representation,  is  the  inducement  to  a  contract.  But  the 
rule  in  regard  to  such  cases  is,  that  there  can  be  no  liability  in  tort  if 
to  enforce  the  action  would  virtually  fix  upon  the  infant  liability  for 
breach  of  contract.  The  case  is  or  may  be  quite  different  where  the 
tort  follows  the  contract ;  there  to  enforce  an  action  for  the  tort  would 
not  be  to  enforce  the  contract. 

1  When  the  forms  of  action  were  rigidly  maintained. 


INTRODUCTION.  H 

to  be  remembered  that  theoretically  the  law  of  torts 
overlaps  that  of  contract  at  the  place  indicated. 

It  is  not  to  be  inferred  that  there  cannot  be  a  tort 
in  respect  of  the  breach  of  a  contract  the  terms  of 
which  are  all  fully  expressed.  If  the  contract  con- 
tain a  false  warranty,  it  is  broken  in  the  breach  of 
the  warranty  ;  and  breach  of  an  affirmative  warranty/ 
fraudulently  made,  may  be  treated  as  a  tort.  So 
too,  what  is  of  much  importance,  a  contract  founded 
upon  a  false  and  fraudulent  representation,  though 
not  amounting  to  a  warranty,  may  be  i-epudiated, 
and  an  action  for  tort  maintained  ;  or  the  contract 
may  be  treated  by  the  injured  party  as  binding,  and 
an  action  for  tort  brought  to  recover  damages  for  the 
loss  caused  by  getting  him  into  the  contract.  The 
explanation  is,  that  the  breach  of  duty  sued  upon  is 
not  in  reality  a  term,  express  or  implied,  of  the  con- 
tract ;  the  duty  violated  is  fixed  by  law,  —  a  duty  not 
to  defraud.  In  this  view,  then,  the  law  of  tort  still 
further  overlaps  that  of  contract.^ 

Consider,  finally,  the  phrase  in  the  definition  '  a 
suit  for  damages.'  Does  this  imply  that  the  plaintiff 
must  have  sustained  some  loss  or  detriment?  Not 
necessarily.      Like  'fraud,'  'damage'  is  a  technical 

1  A  warranty  affirming  a  fact,  as  distinguished  from  one  promising 
something. 

2  In  regard  to  the  case  of  warranty,  if  what  is  said  supra  is  not 
understood,  it  sliould  he  observed  that  warranty  in  itself,  where  it 
consists  in  the  affirmation  of  a  fact,  is  a  contract  only  in  a  peculiar 
sense  ;  and  in  general  it  is  only  false  wairanties  of  that  affirmative 
kind  that  are  treated  as  torts.  As  a  statement  of  fact,  a  warranty  is 
naturally  a  representation  ;  but  the  law  turns  it  artificially  into  a 
contract. 


12  INTRODUCTION. 

term.  There  are  many  cases  in  which  the  defendant 
would  not  be  allowed  to  show  that  the  plaintiff  had 
not  suffered  a  pennyworth.  On  the  other  hand,  there 
are  many  cases  in  which  the  plaintiff  cannot  recover 
judgment  without  proving  that  the  act  or  the  omis- 
sion of  the  defendant  caused  a  loss  to  him. 

In  regard  to  this,  the  law  has  laid  down  only  ar- 
bitrary rules ;  and  that  being  the  case,  about  all 
that  could  be  said  towards  making  clear  the  concep- 
tion of  tort  in  this  particular  would  be  to  state  the 
cases  in  which  loss  must,  and  those  in  which  it  need 
not,  be  proved.  But  at  this  stage  of  the  student's 
work  it  would  be  a  questionable  service  to  enumerate 
the  torts  which  fall  upon  the  one  and  the  other  side 
of  the  line  of  loss.  The  student  can,  however,  satisfy 
himself,  if  he  will,  by  referring  to  the  '  Statement  of 
duty '  at  the  head  of  the  several  chapters  of  the  text ; 
where  the  presence  or  absence  of  the  word  '  damage ' 
will  give  the  desired  information.  There  the  word  is 
used  in  its  ordinary  sense,  '  loss,'  or,  as  the  law  often 
expresses  it,  '  special' damage.' 

To  constitute  damage  within  the  meaning  of  such 
a  phrase  as  '  suit  for  damages,'  whether  loss  is  neces- 
sary or  not,  there  must  have  been  an  infraction  of 
some  legal  as  distinguished  from  a  moral  right,  and 
from  that  sort  of  right  which  is  only  lawful  power, 
such  as  the  right  to  make  a  gift.  But  '  legal '  right 
includes  cases  in  which  the  right  is  in  process  of  for- 
mation at  the  time  of  the  infraction,  and  cases  in 
which  a  person  is  at  the  time  receiving,  actually  or 
potentially,  a  gratuity.^ 

1  Post,  chap.  iv.  §  3  ;  Moore  v.  Meagher,  1  Taunt.  39,  44,  Ex.  Ch. 


INTRODUCTION.  13 

Examples  of  the  statement  just  made  should  be 
given  here  and  now,  or  its  meaning  may  not  be  seen. 
The  following  will,  it  is  hoped,  serve  the  purpose :  A 
and  B  are  negotiating  for  the  sale  by  the  former  to  the 
latter  of  a  horse.  By  false  and  fraudulent  represen- 
tations concerning  the  animal,  C  induces  B  to  break 
off  the  negotiations.  A  has,  it  seems,  sustained  dam- 
age, and  can  maintain  an  action  against  C.^ 

If,  however,  the  case  is  such  that  the  plaintiff  had 
only  a  hope  or  an  expectation  of  obtaining  something 
of  value  from  another,  in  regard  to  which  no  contract 
had  been  made,  no  negotiations  entered  into,  and  no 
enjoyment  begun,  he  will  not  be  deemed  to  have  suf- 
fered damage  by  the  defendant's  causing  his  hope  or 
expectation  to  be  frustrated.  This  too  may  need  the 
aid  of  an  example :  A  makes  his  will  in  favor  of  B ; 
and  C  by  false  and  fraudulent  representations  induces 
A  to  revoke  the  same.  B  has  sustained  no  damage, 
and  cannot  maintain  an  action  against  C.^ 

A  word  more.  The  fact  that  a  tort  is  redressible 
in  damages  serves  to  distinguish  the  offence  from  a 
crime ;  which  is  redressed  by  prosecution  on  behalf 
of  the  public  for  tlie  purpose  of  punishing  the  ac- 
cused, by  imprisonment,  fine,  or  forfeiture.  But  most 
crimes  attended  with  loss  may  also  be  treated  as  torts. 
Homicide  is  an  exception,  apart  from  cases  falling 
within  statute.  It  will  be  seen,  then,  that  the  law  of 
torts,  which  we  have  found  overlapping  the  law  of  con- 
tracts on  one  side,  overlaps  on  the  other  the  criminal 

1  Comp.  Malachy  v.  Soper,  3  Bing.  N.  C.  371  ;  s.  c.  L.  C.  Torts, 
54,  .59. 

2  Hutchius  V.  Hutchins,  7  Hill,  104  ,  s.  c.  L.  C.  Torts,  207. 


14  INTRODUCTION. 

law.     But  the  greater  part  by  far  of  the  domain  of 
tort  lies  between  the  two  extremes. 

In  explanation  of  the  examples  given  throughout 
the  following  pages,  it  is  to  be  observed,  that  when  a 
particular  act  or  omission  under  consideration  is  said 
to  be  a  '  breach  of  duty,'  or  of  '  legal  duty,'  or  of  the 
'  duty  under  consideration,'  it  is  assumed  that  other 
elements  of  liability,  if  there  be  such,  are  present. 
Further,  '  breach  of  duty  '  or  the  like  implies  a  right 
of  action  in  damages.  And  the  term  '  damage,' 
standing  alone,  is  used  in  the  text,  as  well  as  in 
the  '  Statement  of  duty,'  in  the  sense  of  '  special 
damage,'  actual  loss.  The  '  Statement  of  duty  '  is  in- 
tended to  suggest  to  the  student  a  prima  facie  case. 


SPECIFIC  TORTS. 


PART  T. 


BREACH  OF  DUTY  TO  REFRAIN  FROM 
FRAUD  OR  MALICE. 


CHAPTER    I 


DECEIT. 
§  1.     Introductory. 

Statement  of  the  dtdy.  A  owes  to  B  the  duty  to  forbear 
to  mislead  him  to  his  damage  by  false  and  fraudulent  rep- 
resentations. 

/  1.  Deceit  is  a  ground  of  defence  to  the  enforcement  of 
a  contract,  and  is  also  ground  for  proceedings  by  the  in- 
jured party  to  rescind  a  contract.  In  such  cases  the  same 
facts,  apart  from  the  wrongdoer's  knowledge  of  the  actual 
state  of  things,  are  necessary  for  establishing  the  deceit 
as  are  necessary  to  an  action  of  or  for  deceit.^  Hence, 
with  the  exception  mentioned,  authorities  concerning  the 
proof  of  deceit  in  cases  of  contract  are  authorities  in 
regard  to  actions  for  damages  by  reason  of  deceit. 

2.  The  action  at  law  for  damages  by  reason  of  deceit 
is  called  indilferently  an  action  of  deceit  or  an  action /or 
deceit. 


In  order  to  establish  a  breach  of  the  duty  above  stated, 
and  to  entitle  B  to  civil  redress  therefor,  B,  unless  he 
come  within  one  of  the  qualifications  to  the  rule,  must 
make  it  appear  to  tiie  court  (1)  that  A  has  made  a  false 
representation  of  material  facts  ;  (2)  that  A  made  the 
same  with  knowledge  of  its  falsity ;  (3)  that  B  was  igno- 
rant of  its  falsity,  and  believed  it  to  be  true  ;   (4)  that  it 

1  King  V.  Eagle  Mills,  10  Allen,  548  ;  Wilder  v.  Be  Con,  18  Minn. 
470. 


18  LAW  OF   TORTS.  [Part  I. 

was  made  with  intent  that  it  should  be  acted  upon ;  (5) 
that  it  was  acted  upon  by  B  to  his  damage. •  But  each  of 
these  general  elements  of  the  right  of  redress  must  be 
separately  examined  and  explained,  and  any  qualifications 
to  the  same  presented.  The  designation  of  the  parties  as 
A  and  B  may  now  be  dropped,  and  B  will  be  spoken  of 
as  the  plaintiff,  and  A  as  the  defendant. 

§  2.     Of  the  Representation. 

It  is  proper  first  to  consider  the  meaning  of  the  term 
'  representation,'  and  the  nature  of  a  representation,  and 
thus  to  ascertain  what  is  the  foundation  of  the  action 
under  consideration.  A  representation  then,  in  contem- 
plation of  law,  may  be  defined,  for  the  present  purpose, 
to  be  any  clear  impression  of  fact,  created  upon  the  mind 
of  the  plaintiff  by  act  of  the  defendant  sufficient  to  govern 
the  conduct  of  a  man  of  ordinary  intelligence,  —  when 
that  act  falls  short  of  a  warranty. 

The  diff'erence  in  aspect  (and  that  is  all  that  calls  for 
remark  here)  between  a  representation  and  a  warranty 
may  be  put  as  follows  :  While  the  latter  as  well  as  the 
former  may  be  a  statement  of  fact,  it  is  always  annexed 
to  some  contract  and  is  part  of  that  contract ;  the  war- 
ranty is  indeed  a  contract  itself,'^  though  a  subsidiary  one, 
dependent  upon  the  main  agreement.  A  representation, 
however,  is  in  no  case  more  than  inducement  to  a  con- 
tract ;  it  is  never  part  of  one.  To  carry  it  into  a  contract 
would  be  to  make  it  a  warranty.  And  again,  there  may 
be  a  representation,  such  as  the  law  will  take  cognizance 
of,  though  no  contract  was  made  or  attempted  between 

1  Pasley  v.  Fieemnn,  3  T.  R.  51  ;  s.  c.  L.  C.  Torts,  1. 

2  Brownlie  v.  Campbell,  5  App.  Cas.  925,  953,  Lord  Blackburn. 
An  affirmative  warranty  is  ordinarily  an  artificial  contract  of  the  law. 
Ante,  p.  II,  note. 


Chap.  I.  §  2.]  DECEIT.  19 

the  one  who  made  the  representation  and  the  one  to  whom 
it  was  made. 

This  would  be  sufficient  to  distinguish  tlie  two  terms,  if 
it  were  necessary  to  a  warranty  that  it  sliould  be  expressly 
annexed  to  the  contract-in-chief ;  but  that  is  not  neces- 
sary, and  that  fact'  sometimes  creates  difficulty.  In  writ- 
ten contracts  there  can  seldom  be  difficulty  in  determining 
whether  a  particular  statement  is  a  warranty  or  a  repre- 
sentation (when  it  is  one  or  other),  for  the  warranty  must 
be  part  of  the  writing,  since  a  warranty  must  be  part  of 
the  contract-in-chief, ^  and  it  will  either  be  directly  incor- 
porated into  the  general  writing  or  be  so  connected  with 
it  by  apt  language  ^  that  there  can  be  no  doubt  of  the 
intention  of  the  parties. 

The  difficulty  is  with  oral  contracts,  and  then  for  the 
greater  part  only  in  regard  to  sales  of  personalty.  Whether 
the  statement  in  question  is  a  representation  or  a  warranty 
is,  however,  a  question  of  intention  ;  and  an  intention  to 
create  a  warranty  is  shown,  it  seems,  by  evidence  of  mate- 
rial statements  of  fact  made  as  an  inducement  to  the  sale, 
at  the  time  the  bargain  was  effected,  or  during  negotia- 
tions therefor  which  have  been  completed  in  proper  reli- 
ance upon  the  statements  ;  ^  provided  nothing  at  variance 
with  the  inference  of  intention  is  shown.*     If  the  state- 

1  Kain  v.  Old,  2  B.  &  C.  627. 

■2  A  warranty  may  indeed  be  implied,  i.  e.  arise  without  language, 
but  such  cases  are  aside  from  the  present  purpose.  The  difficulty  under 
consideration  concerns  the  effect  of  language  used. 

3  See  Hopkins  v.  Tanqueray,  15  C.  B.  130.  This  will  explain  many 
cases  m  which  it  is  held  that  a  vendor  of  personalty  is  liable  for  his  false 
representations  though  he  believed  them  to  be  true.  See  Sledge  v, 
Scott,  56  Ala.  202  ;  post,  p.  35.  In  such  cases  there  is  in  reality  a 
warranty,  and  hence  the  vendor's  knowledge  is  immaterial,  though  the 
case  is  not  always  put  on  the  ground  of  warranty. 

*  Such  appears  to  be  the  effect  of  the  cases.  See  Benjamin,  Sales, 
§  613. 


20  LAW  OF  TORTS.  [Part  i 

ment  was  not  so  made,  it  is  a  representation  if  it  is  any- 
thing. What  difflcLilty  remains  is  in  the  application  of  the 
rule  ;  and  that  is  a  matter  for  works  treating  of  contracts 
or  torts  in  detail. 

A  warranty  of  fact,  however,  when  broken  may  be 
treated,  it  seems,  as  a  case  of  misrepresentation,  giving 
rise  to  an  action  for  deceit  if  the  elements  necessary  to 
liability  in  a  proper  case  of  misrepresentation  are  pres- 
ent ;  ^  and  this,  it  is  believed,  is  true  whether  the  warranty 
was  express  or  implied.  Indeed,  in  case  of  implied  war- 
ranty the  breach  appears  to  be  enough  to  make  the  case 
one  of  deceit.^  This  reduces  the  matter  to  a  question  of 
the  form  of  action.  But  it  is  very  doubtful  whether  an 
action  based  on  deceit  could  be  maintained  where  the  evi- 
dence showed  nothing  but  a  breach  of  warranty.^  That 
would  be  a  variance  ;  the  action  should  be  on  the  warranty 
as  such. 

The  representation  requires,  as  the  definition  indicates, 
an  act.  There  are,  it  is  true,  cases  in  which  legal  conse- 
quences may  attend  absolute  silence  ;  but  there  are  prob- 
ably no  cases  of  the  common  law  in  which  an  action  for 
damages  on  account  of  silence  alone  can  be  maintained. 
There  must  be  some  additional  element  to  make  silence 
actionable.*  If  the  silence  consist  in  withholding  part  of 
the  truth  of  a  statement,  it  may  be  actionable,  as  will  be 

1  See  Indianapolis  E.  Co.  v.  Tyng,  63  "N.  Y.  653. 

2  White  V.  Madison,  26  N.  Y.  117,  124  ;  Jefts  v.  York,  10  Cush. 
392  ;  Johnson  v.  Smith,  21  Conn.  627  ;  Collen  v.  Wright,  8  El.  &  B. 
647  ;  Eandell  v.  Trimen,  18  C.  B.  786  ;  Seton  v.  Lafone,  18  Q.  B.  D. 
139,  affirmed  on  appeal,  19  Q.  B.  Div.  68;  post,  p.  36. 

3  Mahurin  v.  Harding,  28  N.  H.  128  ;  Cooper  v.  Landon,  102  Mass. 
58  ;  Larey  v.  Taliafferro,  57  Ga.  443. 

*  The  ciuestion  of  the  effect  of  .silence  is  perhaps  more  frequently  seen 
in  defences  than  as  a  ground  of  action.  For  a  case  of  defence  see  Lee  v. 
Jones.  17  C.  B.  n.  s.  482  ;  s.  c.  14  C.  B.  N.  s.  386. 


;:hap.  I.  §  2.]  DECEIT.  21 

seen  later ;  but  in  snch  a  case  silence  is,  properly  speak- 
ing, only  part  of  the  representation.  The  silence  amounts 
to  saying  that  what  has  been  stated  is  all.  There  is  a 
duty  to  speak  in  such  a  case,  and  it  is  only  when  there  is 
such  a  duty  that  silence  has  any  legal  significance. 

Indeed,  even  passive  concealment,  that  is,  intentional 
withholding  of  information,  when  not  attended  with  any 
active  conduct  tending  to  mislead,  is  insufficient,  accord- 
ing to  the  general  current  of  common-law  authority,  to 
create  a  cause  of  action.  For  example  :  The  defendant, 
knowing  of  the  existence  of  facts  tending  to  enhance  the 
price  of  tobacco,  of  which  facts  the  plaintiff  is  ignorant  to 
the  defendant's  knowledge,  buys  a  quantity  of  tobacco  of 
the  plaintiff  at  current  prices,  withholding  information  of 
the  facts  referred  to  (no  question  being  asked  to  bring 
them  out).  This  is  no  breach  of  duty  to  the  plaintiff.^ 
Again :  The  defendant  buys  of  the  plaintiff  land  in  which 
there  is  a  mine,  the  defendant  knowing  the  fact,  and 
knowing  that  the  plaintiff  is  ignorant  of  it.  The  defend- 
ant does  not  disclose  the  fact  in  the  negotiations  for  the 
purchase.     This  is  no  breach  of  duty.^ 

1  Laidlaw  v.  Organ,  2  Wheat.  178.  See  Prescott  v.  Wright,  4  Gray, 
461,  464  ;  Kintzing  v.  McElrath,  5  Barr,  467  ;  Smith  v.  Countryman, 
30  ISr.  Y.  655,  670,  671  ;  People's  Bank  v.  Bogart,  81  N.  Y.  101  ; 
Hanson  v.  Edgerly,  29  N.  H.  343  ;  Fisher  v.  Budlong,  10  R.  I.  525, 
527  ;  Hadley  v.  Clinton  Importing  Co.,  13  Ohio  St.  502  ;  Williams  v. 
Spurr,  24  Mich.  335 ;  Law  v.  Grant,  37  Wis.  548  ;  Cogel  v.  Kniseley, 
89  111.  598  ;  Frenzel  v.  Miller,  37  Ind.  1  ;  Smith  v.  Hughes,  L.  R.  6 
Q.  B.  597  ;  Evans  v.  Carrington,  2  De  G.  F.  &  J.  481  ;  Peek  v.  Gur- 
ney,  L.  R.  6  H.  L.  377,  Lord  Cairns  ;  Coaks  v.  Boswell,  11  App.  Cas. 
232,  Lord  Selborne.  '  Whatever  may  he  the  case  in  a  court  of  morals, 
there  is  no  legal  obligation  on  the  vendor  to  inform  the  purchaser  that 
he  is  under  a  mistake,  not  induced  by  the  act  of  the  vendor.'  Black- 
burn, J.  in  Smith  v.  Hughes,  supra.  Contra  in  some  of  the  States. 
Patterson  v.  Kirkland,  34  Miss.  423  ;  Cecil  v.  Spurgur,  32  Mo.  462 ; 
Lunn  V.  Shermer,  93  N.  Car.  164  ;  Merritt  v.  Robinson,  35  Ark.  483. 

2  Fox  V.  Mackreth,  2  Bro.  C.  C.  400,  420,  a  leading  case  in  equity. 
See  Turner  v.  Harvey,  Jacob,  169,  178,  Lord  Eldon. 


22  LAW   OF  TORTS.  [Part  I. 

An  act,  however,  attending  what  would  otherwise  be  a 
case  of  perfect  silence,  in  regard  to  the  fact  in  question, 
may  have  the  effect  to  create  a  representation,  and  lay  the 
foundation,  so  far,  for  an  action  ;  ^  but  the  act  must  be  sig- 
niticant  and  misleaduig.^  For  that  purpose,  however,  it 
may  be  slight ;  ®  a  nod  of  the  head  may  no  doul)t  be 
enough,  so  may  a  withdrawing  of  attention  from  some 
point  to  which  it  is  being  or  about  to  be  directed. 

But  as  has  just  been  said,  the  act  attending  the  silence 
must  be  significant  and  misleading ;  if  not,  it  will  count 
for  nothing.  P'or  example :  The  plaintiff  sues  the  de- 
fendant for  damages  caused  by  the  sale  to  him  by  the 
defendant  of  animals  having  a  contagious  disease.  Stat- 
ute prohibits  the  sending  of  such  animals  to  market,  and 
imposes  a  penalty  for  violating  the  prohibition.  The  ani- 
mals in  question  have,  however,  been  inspected  by  the 
public  officer,  and  passed,  before  the  sale.  The  seller  has 
made  a  written  statement  that  the  animals  must  be  taken 
'  with  all  faults,'  and  that  no  warranty  is  made  and  no 
compensation  for  defects  will  be  given.  These  facts  do 
not  show  any  representation  by  the  defendant  that  the 
animals  are  not  affected  with  disease,  or  create  any  right 
to  damages  in  favor  of  the  plaintiff ;  ^  though  it  is  pos- 
sible that  the  case  might  have  been  different  had  there 
been  no  such  statement  by  the  seller  as  that  mentioned.^ 

In  a  word,  then,  the  supposed  representation  must  be 
clear  and  certain  ;  the  plaintiff  does  not  make  out  the 
alleged  breach  of  duty  if  his  evidence  show  only  a  state- 

1  Laidlaw  v.  Organ,  supra  ;  Hadley  v.  Clinton  Importing  Co., 
supra. 

2  Id. 

3  Turner  v.  Harvey,  Jacob,  at  p.  178. 

*  AVard  v.  Hobbs,  4  App.  Cas.  13,  affirming  3  Q.  B.  Div.  150. 
Comp.  Jeffery  v.  Bigelow,  13  Wend.  518. 

s  See  Badger  v.  Nichols,  28  L.  T.  N.  s.  441,  Blackburn,  J.  referred 
to  by  Lord  Cairns  in  Ward  v.  Hobbs.  but  apparently  with  doubt. 


Chap.  I.  §  2.]  DECEIT.  23 

ment  or  act  of  vague  or  iutlefiiiite  import.  This  rests 
upon  the  ground  that  the  '  average  man,'  that  is,  a  man 
of  average  intelligence,  —  by  whose  supposed  conduct  the 
law  judges,  —  would  not  rely  and  act  upon  statements  of 
an  indefinite  nature.  The  fact  that  they  are  of  such  a 
nature  would  put  such  a  man  upon  inquiry  before  acting, 
if  acting  were  seriously  contemplated ;  and  tlien  if  he 
should  act,  he  would  have  acted  upon  the  information  so 
obtained  and  not  upon  the  indefinite  statements.  Hence, 
whether  he  acted  or  did  not  act,  the  author  of  those  state- 
ments would  not  be  liable.  For  example  :  The  defend- 
ant, a  vendor  of  land,  points  to  a  certain  tree  as  the 
probable  boundary  of  his  premises,  and  the  plaintiff  buys 
rel^'ing  upon  that  statement  as  a  statement  of  the  actual 
boundary.  The  defendant  is  not  liable  in  damages  for 
the  loss  sustained  by  the  plaintiff.^ 

The  representation  need  not,  however,  be  created  by 
language  ;  there  is  no  distinction  between  an  impression 
created  by  words  and  one  created  by  other  acts.'^  If  the 
impression  is  capable  of  being  stated  as  an  existing  or 
past  fact,  and  is  such  as  might  govern  the  conduct  of  an 
average  man  in  regard  to  some  change  of  position  in  con- 
templation, it  is  enough.  In  a  word,  the  representation 
may  be  entirely  implied.  Indeed,  it  appears  to  be  unne- 
cessary that  such  a  representation  should  be  adverted 
to  or  consciousl}'  present  to  the  mind  at  the  time  of  the 
'jhange  of  position  ;  a  fact  to  be  brought  out  later. 

It  follows  that,  to  constitute  a  false  representation,  it  is 
not  necessary  that  statements  made  should  be  made  in 
terms  expressly  affirming  the  existence  of  some  fact.  If 
the  alleged  misrepresentation  be  made  by  the  defendant 

1  See  Halls  v.  Thomiison,  1  Sinedes  &  M.  443. 

2  Lobdell  V.  Baker,  1  Met.  193  ;  Coolidge  v.  Brigham,  id.  547,  551  ; 
Mizner  v.  Kussell,  29  Mieh.  229  ;  Paddock  v.  Strobvidge,  29  Vt.  470. 
Tliese  are  cases  of  implied  warranties,  but  tlie  principle  is  the  same. 


24  LAW  OF  TORTS.  [Part  L 

in  terms,  or  by  conduct,  such  as  would  naturally  lead  the 
plaintiff,  as  a  man  of  average  intelligence,  to  suppose  the 
existence  of  a  particular  state  of  facts,  that  is  as  much 
as  if  statements  had  so  been  made  in  exact  terms.' 

It  should  be  noticed  that  there  is  a  difference  in  fact 
between  vagueness  and  ambiguity.  Vagueness,  as  we 
have  seen,  is  fatal  to  the  idea  of  a  legal  representation  ; 
but  ambiguity  in  an  impression  may  only  mean  that  more 
than  one  fact  has  been  impressed  upon  the  mind,  not  that 
none  at  all  has  been  left  there.  In  such  a  case  as  this  the 
only  question  that  can  arise  in  reason  or  in  law  is  whether, 
assuming  the  facts  impressed  to  be  clear  and  definite,  the 
plaintiff  reasonably  acted  upon  the  one  which  was  false. 
That  he  did  this  it  devolves  upon  him  to  show.  For  ex- 
ample :  The  defendants  issue  a  prospectus  in  regard  to  a 
company,  in  process  of  formation  to  take  over  certain  iron 
works,  which  prospectus  contains  the  following  statement : 
'  The  present  value  of  the  turnover  or  output  of  the  en- 
tire works  is  a  million  pounds  sterling  per  annum.'  This 
statement  might  mean  either  that  the  works  had  actually 
turned  out  more  than  a  million's  worth  at  present  prices 
within  a  year  or  yearly,  or  only  that  the  works  were  capa- 
ble of  turning  out  so  much  ;  in  the  former  case  it  is  false, 
in  the  latter  it  might  be  true.  The  plaintiff,  who  has 
been  induced  to  buy  shares  in  the  undertaking,  must  show 
that  he  acted  upon  the  statement  in  the  sense  in  which  it 
was  false. ^ 

Wliere  a  term  of  art,  having  a  technical  and  also  a  pop- 
ular meaning,  has  been  used,  the  case  may  be  affected  by 
presumption.  Between  parties  engaged  in  the  same  voca- 
tion, the  presumption  (probably)  would  be,  that  the  rep- 
resentation was  to  be  taken  in  the  technical  sense  ;  if  they 

1  Donovan  v.  Donovan,  9  Allen,  140  ;  Rhode  i\  Alley,  27  Texas, 
443,  446  ;  Lee  v.  Jones,  17  C.  B.  N.  s.  482  ;  s.  c.  14  C.  B    x   s.  386. 

2  Smith  V.  Chadwick,  9  App.  Cas.  187  ;  s.  c.  20  Ch.  Div.  27. 


Chap.  I.  §  2.]  DECEIT.  25 

were  not,  there  would  perhaps  be  no  presumption  either 
way.  In  either  case  it  would  be  necessary,  judging  from 
the  decision  in  the  case  just  stated,  for  the  plaintiff  to 
show  that  he  had  acted  upon  the  representation  in  the 
sense  in  wiiich  it  was  false  ;  and  even  then  there  could 
not  be  a  cause  of  action  if  the  defendant  made  the  state- 
ment with  reasonable  ground  to  suppose  that  it  would  he 
acted  upon  in  the  sense  in  which  it  was  true.  And  in 
that,  presumption  might  help  him.  The  presumption, 
however,  in  any  ease,  would  only  be  prima  facie,  and  hence 
conclusive  only  in  the  absence  of  evidence  opposed  to  it. 

Another  case  may  be  mentioned.  A  statement  of  fact 
may  have  one  meaning  in  one  place  and  another  in 
another ;  in  such  a  case  it  would  seem  that  the  statement 
should  be  understood  as  intended  in  the  sense  in  which 
it  is  commonly  used  where  it  was  made,^  unless,  indeed, 
it  was  made  there  by  one  I'esiding  where  it  is  used  in  a 
different  sense.  In  this  latter  case  the  courts  would  (prob- 
ably) consider  the  party  bound  only  by  that  meaning 
which  he  would  have  reason  to  suppose  was  conveyed. 

Upon  the  principle  that  there  can  be  no  breach  of  the 
legal  duty  in  question  unless  the  supposed  representation 
be  definite  enough  to  justify  the  average  man  in  relying 
upon  it,  there  must  be  something  more,  especially  for  a 
warranty,  than  the  expression  of  a  mere  opinion.  It 
would  not  be  enougli  to  constitute  a  warranty,  for  a  vendor 
to  say  that  a  certain  valve  would  consume  smoke  and 
save  fuel,^  or  that  certain  pictures  were  the  works  of  old 
masters,^  much  less  that  his  property  was  worth  a  certain 
sum.*     "Whatever  weight  such  statements  might  have,  and 

1  See  Yeates  v.  Prior,  6  Eng.  (Ark.)  58. 
2Prideaux  v.  Buiinett,  1  C.  B.  N.  s.  613. 
8  Jendwiue  v.  Slade,  2  Esp.  572. 

*  Vernon  v.  Key.s,  12  East.  632  ;  s.  c.  4  Taunt.  488,  Ex.  Ch.  ; 
Anderson  v.   Hill,    1 2   Smedes  &  M.   679  •  Chrysler  v.   Canaday,    90 


26  LAW  OF  TORTS.  [Part  I. 

in  point  of  fact  tliey  miglit  come  witli  much  weight  in 
particular  cases,  they  would  not  stand  upon  the  footing  of 
statements  of  fact.  A  simple  statement  of  fact  may  con- 
stitute a  warranty  ;  while  statements  of  opinion  are  often 
below  the  grade  of  representations. 

Statements  made  in  regard  to  the  value  of  property 
about  to  be  sold  are  apt  to  give  rise,  however,  to  difficult 
questions.  The  general  rule,  as  already  indicated,  is 
plain  enough  ;  '  simplex  commendatio  non  obligat.'  But 
what  is  '  simplex  commendatio  ?  '  A  simple  statement 
of  value  by  a  vendor  is  a  clear  case  on  the  one  hand  ;  a 
plain  statement  of  fact  going  to  make  up  value,  as  the 
age  of  a  horse,  is  an  equally  clear  case  on  the  other. 
But  what  of  statements  falling  between  the  two  extremes  ? 
The  question  cannot  be  definitely  answered  ;  most  of  the 
cases  that  arise  have  to  be  determined  upon  the  special 
facts  attendmg  them.  That  is  to  sa}^,  particular  rules  can 
seldom  be  framed  to  reach  them,  and  general  rules  have 
only  a  remote  bearing  upon  them. 

One  or  two  rules,  however,  of  a  limited  nature,  have 
been  laid  down  touching  the  subject.  It  has  been  laid 
down  by  able  courts,^  and  denied  by  others,-  that  a  ven- 
dor's false  statements  of  what  an  article  or  a  tract  of  land 
cost,  or  what  at  some  time  it  has  brought,  or  what  has 
been  offered  for  it,  may  come  within  the  cognizance  of  the 
law  like  ordinary  representations  of  fact.  Some  courts, 
indeed,  have  gone  much  further  than  denying  this  propo- 

N.  Y.  272  ;  Ellis  v.  Andrews,  56  N.  Y.  83  ;  Medbiiry  v.  Watson,  6 
Met.  246;  Cooper  v.  Levering,  106  Mass.  79;  Martin  v.  Jordan,  60 
Maine,  531  ;  Bishop  v.  Small,  63  Maine,  12. 

1  Van  Epps  v.  Harrison,  5  Hill,  63  ;  Page  v.  Parker,  43  N.  H.  363; 
Soniers  v.  Kichards,  46  Vt.  170  ;  Ives  v.  Carter,  24  Conn.  392  ;  McAleer 
V.  Horsey,  35  Md.  439  ;  McFadden  v.  Robinson,  35  Ind.  24  ;  Morehead  v. 
Eades,  3  Bush,  121.    The  rule  in  these  cases  appears  to  be  the  better  one. 

2  Medbury  v.  Watson,  6  Met.  246  ;  Cooper  v.  Lovering,  106  Mass. 
79  ;  Martin  v.  Jordan,  60  Maine,  531  ;  Bishop  v.  Small,  63  Maine,  12. 


Chap.  I.  §  2.]  DECEIT.  27 

sition.-'  But  it  is  generally  agreed  that  such  statements 
when  made,  not  by  the  vendor,  but  by  a  stranger,  may 
constitute  actionable  misrepresentations.  For  example  : 
The  defendant,  not  being  the  seller  of  the  property, 
falsely  states  that  a  tannery  has  on  a  previous  sale 
brought  a  certain  price.  This  is  a  misrepresentation 
capable  of  sustainiug  an  action  under  the  law.'^ 

Again,  it  is  settled  law  that  statements  of  the  income 
of  property,  or  of  the  rental  receipts  of  a  leasehold  estate 
to  be  sold  would  constitute  representations  of  fact.  For 
example  :  The  defendant,  seller  of  a  public-house,  falsely 
tells  the  buyer,  the  plaintiff,  that  the  receipts  of  the  house 
have  been  £160  per  month,  and  that  the  tap  is  let  for  £82 
per  annum,  and  two  rooms  for  £27  per  annum.  This  is 
a  false  representation,  and  not  a  mere  statement  of 
value. 3  And  this  possibly  might  be  true  if  the  state- 
ment were  that  the  present  '  value '  of  the  property  is  a 
certain  sum  per  year ;  for  that  might  mean  its  annual 
return."* 

Statements  concerning  the  pecuniary  condition  of  an 
individual  are  not  necessarily  statements  of  opinion,  and 
when  distinctly  and  specifically  made  may  be  breaches  of 
the  duty  under  consideration.  For  example :  The  de- 
fendant says  to  the  plaintitf ,  '  F  is  pecuniarily  responsi- 
ble. You  can  safely  trust  him  for  goods  to  the  amount 
of  $15,000.'     This  is  a  representation  of  fact.^ 

1  HolLrook  v.  Connor,  60  Maine,  576,  false  statements  concerning 
deposits  of  oil  in  lands,  and  that  the  lands  were  of  great  value  for  mak- 
ing oil,  held  mere  opinion  by  a  majority. 

^  Medbnry  v.  Watson,  6  Met.  246. 

3  Dobell  V.  Stevens,  3  B.  &  C.  623  ;  Medbury  v.  Watson,  supra,  at 
p.  260  ;  Ellis  v.  Andrews,  56  N.  Y.  83,  86.  See  Fuller  v.  Wilson,  3 
Q.  B.  58;  Lj'sney  v.  Selby,  2  Ld.  Raym.  1118,  leading  case. 

*  See  Smith  v.  Chadwick,  9  App.  Cas.  187,  ante,  p.  24.  But  see 
Ellis  V.  Andrews,  ut  supra. 

^  Pasley  v.  Freeman,  3  T.  R.  51  ;  s.  c.  L.  C.  Torts,  1.     Sucli  rep- 


28  LAW  OF   TORTS.  [Part  L 

Slight  expressions,  however,  are  sufficient  to  put  state- 
ments of  this  character  on  the  footing  of  statements  of 
opinion.  For  example  :  The  defendant,  in  answer  to  in- 
quiries as  to  the  circumstances  and  credit  of  a  third  per- 
son, says  to  the  phxintiff,  '  I  shoukl  be  willing  to  give 
him  credit  for  anything  he  wanted.'  This  statement  can- 
not safely  be  acted  upon  by  the  plaintiff.  The  mere  fact 
that  the  defendant  may  be  willing  to  give  him  credit  does 
not  necessarily  justify  the  plaintiff  in  doing  so.^ 

The  rule  of  certainty  further  requires  that  the  repre- 
sentation should  relate  to  present  or  past  facts ;  if  it  re- 
late to  matters  in  the  future,  it  cannot  justify  a  i^rudent 
man  in  acting  upon  it,  unless  it  comes  to  a  contract,  and 
then  it  will  not  be  a  legal  representation.^ 

In  most  cases  of  uncertain  statements,  consisting  of 
opinion  or  prediction  as  distinguished  from  the  uncertainty 
of  vagueness,  there  will  be  implied  a  plain  representation 
of  fact,  to  wit,  that  the  party  knows  of  nothing  making 
his  expressed  statement  false.  And  there  is  strong  reason 
to  believe  that  the  courts  would  take  cognizance,  not  in- 
deed of  the  opinion  or  prediction,  but  of  this  implied 
though  none  the  less  real  representation,  if  it  should  be 
false. 

This  observation  is  founded  upon  the  language  from 
the  bench  in  a  recent  case.^  It  was  there  said  in  sub- 
stance that  if  facts  were  not  equally  known  to  both  par- 

reseiitations  must  now  in  many  states  be  proved  by  writing  signed  by 
the  party  to  be  charged. 

1  Gainsford  v.  Blachford,  7  Price,  544. 

2  See  Pedrick  v.  Porter,  5  Allen,  324  ;  Langdon  v.  Doud,  10  Allen, 
43-3  ;  Jackson  v.  Allen,  120  Mass.  64,  79  ;  Burgess  v.  Seligman,  107 
U.  S.  20,  32  ;  Jorden  v.  Money,  5  H.  L.  Gas.  185  ;  Citizens'  Bank  v. 
First  National  Bank,  L.  R.  6  H.  L.  352,  360. 

3  Smith  V.  Land  Corporation,  28  Ch.  Div.  7,  Bqwen,  L.  J.  The 
statement  in  question  was  that  a  certain  person  was  a  '  most  desirable 
tenant,'  and  the  court  took  cognizance  of  it. 


Chap.  I.  §2.)  DECEIT.  29 

ties,  a  statement  of  opinion  by  the  one  who  knew  the 
truth  very  often  involves  a  statement  of  fact,  '  for  he  im- 
pliedly states  that  he  knows  facts  which  justify  his  opin- 
ion.' For  example :  The  defendant,  a  cattle  dealer, 
desiring  to  sell  cattle  to  the  plaintiff,  makes  a  statement 
in  the  form  of  opinion  that  the  cattle  will  weigh  900  lbs. 
and  upwards  per  head.  He  has  already  weighed  them, 
and  knows  that  their  average  weight  is  considerably  below 
900  pounds.     This  is  a  breach  of  duty.^ 

A  similar  observation  to  that  just  made  should  be 
made  in  regard  to  representations  looking  to  the  future, 
whether  in  the  way  of  prediction  or  of  promise.  As  pre- 
diction, the  case  would  fall  without  the  notice  of  the  law ; 
and  so  it  would  as  promise,  unless  the  promise  came  to  a 
contract.  But  either  as  prediction  or  as  promise  there 
would  ordinarily  be  an  implied  representation  that  the 
party  making  it  knew  of  nothing  which  made  his  state- 
ment a  sham.  Thus,  if  a  person  were  to  say  that  a  cer- 
tain vessel  would  arrive  on  the  morrow,  that  would  amount 
to  a  representation  that  he  knew  nothing  to  the  contrary ; 
if  he  knew  that  she  was  at  the  bottom  of  the  sea,  there 
would,  or  there  might  be,  a  case  for  the  courts.  Again, 
if  a  person  were  to  promise  to  pay  for  goods  bought  by 
him  ou  credit,  intending  at  the  same  time  not  to  pay  for 
them,  there  would  be  a  case  for  the  courts  on  the  footing 
of  misrepresentation  ;  -  for  the  party's  promise  is  a  plain 
representation  of  present  intention  to  fulfil  his  undertak- 
ing. Such  cases  are,  however,  more  commonly  treated  as 
cases  for  rescission  of  the  contract. 

1  Birdsey  v.  Butterfiekl,  34  Wis-  52.  See  Allen  v.  Hart,  72  111. 
104;  Faribault  v.  Sater,  13  Minn.  223  And  further  see  Pike  v.  Fay, 
101  Mass.  134  ;  Pickard  v.  MeCormick,  11  Mich.  68  ;  Kost  v.  Bender, 
25  Mich.  515.  These  cases  show  that  positive  statements  of  value  by 
experts,  in  matters  requiring  expert  knowledge,  may  stand  on  the  foot- 
ing of  ordinary  statements  of  fact. 

2  Bristol  V.  Wilsmore.  1  B.  &  C.  514. 


30  LAW   OF  TORTS.  [Part  I. 

It  is  evident  that  tlie  party  wronged  may  not  in  any  of 
these  cases  of  imphed  representation  have  adverted  to  the 
representation  behind  the  actual  language;  indeed,  it 
would  seldom  happen  that  he  had  adverted  to  the  fact. 
But  that  would  not  affect  the  case  ;  the  implied  statement 
has,  or  may  have,  influenced  the  party's  conduct,  notwith- 
standing the  fact  that  he  may  have  been  unconscious  of 
the  precise  nature  of  the  influence.  Had  attention  been 
directed  to  the  matter,  he  would  certainly  have  said  that 
the  language  implied  the  representation  behind  it,  to  wit, 
that  nothing  was  known  to  the  defendant  falsifying  his 
expressed  opinion,  prediction,  or  promise. 

Again,  to  come  within  the  notice  of  the  law,  the  repre- 
sentation, if  not  made  by  a  lawyer  to  a  layman,  or  by  a 
man  professing  familiarity  with  the  law  to  one  not  familiar 
with  it,  must,  it  seems,  be  more  than  a  mere  representa- 
tion of  what  the  law  is.  The  reason  of  this  has  some- 
times been  said  to  be  that  all  men  are  presumed  to  know 
the  law  ;  '  ignorantia  legis  neminem  excusat.'  But  it  may 
be  doubted  whether  that  is  the  true  ground  of  the  rule  ; 
if  it  were,  misrepresentation  of  the  law  by  one's  legal 
counsel  could  hardly  be  made  the  foundation  of  any  lia- 
bility. A  better  reason  appears  to  be  that  the  law  is 
understood  by  all  men  to  be  a  special  branch  of  learning ; 
and  hence  what  one  layman  may  say  to  another  will  sel- 
dom have  the  effect  to  alter  conduct.  But  whatever  the 
ground,  the  rule  appears  to  be  treated  as  settled.  For 
example  :  The  defendant  misrepresents  the  legal  effect  of 
a  contract  which  he  thei-eby  induces  the  plaintiff  to  enter 
into  witli  him,  both  parties  being  laymen.  The  defendant 
is  not  liable  in  damages  for  the  loss  inflicted  upon  the 
plaintiff.' 

1  Upton  V.  Tribilcock,  91  U.  S.  45.  See  Lewis  v.  Jones,  4  B.  &  C. 
506  ;  Beattie  v.  Ebury,  L.  R.  7  Ch.  777,  804;  Eaglesfield  v.  London- 
derry, 4  Ch.  Div.  693,  Jessel,  M.  R.,  explaining  the  nature  of  a  repre- 


Chap,  I.  §  2.]  DECEIT.  31 

As  the  lauguage  above  used,  however,  plainly  implies, 
it  is  not  broadly  true  that  a  misrepresentation  of  the  law 
may  not  be  ground  for  an  action  of  deceit.  If  a  person 
having  superior  means  of  knowing  the  law,  and  professing 
to  know  it,  though  not  a  law^^er  and  not  professing  to  be, 
should  knowingly  give  false  mformation  of  it  in  order  to 
influence  the  conduct  of  one  ignorant  of  the  same,  there 
would  (so  far)  be  an  actionable  misrepresentation.  For 
example :  An  immigrant,  lately  arrived  from  abroad, 
meets  an  old  citizen,  who  professes  familiarity  with  the 
land  titles  of  the  country,  and  proposes  to  sell  land  to 
him,  to  which  he  falsely  assures  the  immigrant  the  title  is 
good.  This  is  a  misrepresentation  capable  of  sustaining 
an  actiou.^ 

When,  further,  it  is  said  that  the  representation  must 
be  of  a  character  to  affect  the  conduct  of  a  prudent  man, 
i.  e.  when  it  is  said  that  the  representation  must,  in  the 
language  of  the  books,  be  material,  it  is  not  to  be  implied 
that  the  law  will  not  take  notice  of  the  case  if  influences 
from  other  sources  may  have  operated  upon  the  plaintiff. 
The  only  question  upon  this  point  is  wliether  the  repre- 
sentation made  by  the  defendant  was  adequate  to  influ- 
ence, and  did  influence,  the  plaintiff,  not  whether  it  was 
the  sole  inducement  to  the  action  taken  ;  if  it  was  suflS- 
cient  to  influence  him,  and  did  influence  him  to  some  real 
extent,  that  is  enough.  The  courts  will  not  be  astute  to 
find  that  one  of  several  inducements  present  was  not  ade- 
quate to  the  damage. 2  Indeed,  if  the  defendant  has 
accomplished   his  purpose  by  his  misrepresentation,   he 

sentation  of  law.     And  see  West  London  Bank  v.  Kitson,   13  Q.  B. 
Div.  360,  363,  Bowen,  L.  J. 

1  Moreland  v.  Atchison,  19  Texas,  303. 

2  James  v.  Hodsden,  47  Vt.  127  ;  SafFord  v.  Grout,  120  Mass.  20  ; 
Jordan  y.  Pickett,  78  Ala.  331  ;  Hale  v.  Philbrick,  47  Iowa,  217  ;  Mc- 
Aleer  v.  Horsey,  35  Md.  439  ;  Reynell  v.  Spryc,  1  De  G.  M.  &  G.  660. 


32  LAW  OF  TORTS.  [Part  I. 

will  not,  it  seems,  be  permitted  to  say  that  the  act  was 
immaterial.^ 

Finally,  it  is  for  the  plaintiff  to  show  that  the  repre- 
sentation was  false.  But  a  representation  is  false  in 
contemplation  of  law  as  well  as  of  morals  if  it  is  false  in 
a  plain,  practical  sense  ;  if,  that  is  to  say,  it  would  be  apt 
to  create  a  false  impression  upon  the  mind  of  the  average 
man.  For  example  :  The  prospectus  of  a  company  about 
to  construct  a  railway  describes  the  contract  for  the  work 
as  entered  into  at  '  a  price  considered  within  the  available 
capital  of  the  company.'  The  fact  is,  that  there  is  a 
merely  nominal  capital  of  £.500,000,  and  from  this  the 
sum  of  £.50,000  is  to  be  deducted  for  the  purchase  of  the 
concession  for  making  the  railway,  and  the  contract  price 
for  making  it  is  £420,000.  The  representation  is  false  ; 
the  term  '  available  capital '  not  being  a  true  description 
of  capital  to  be  raised  by  l)orrowing.'^ 

An  example  in  contrast  with  the  foregoing  may  be 
stated.  A  prospectus  of  a  company  formed  for  buying  a 
certain  business  declares  that  the  price  of  purchase  is  a 
stated  sum,  and  that  no  '  promotion  money '  is  to  be  paid 
to  the  directors  of  the  company  for  making  the  purchase. 
In  fact,  the  sum  paid  for  the  business  is  somewhat  less 
than  the  sum  stated  in  the  prospectus,  and  shares  of  the 
stock  representing  the  difference  are  now  transferred, 
part  to  the  directors  of  the  company  who  effected  the 
purchase,  which  part  is  afterwards  transferred  to  the  com- 
pany on  complaint,  and  part  to  the  solicitors  in  the  trans- 
action.    This  is  not  misrepresentation.^ 

1  Smith  V.  Kay,  7  H.  L.  Cas.  750. 

2  Central  Ry.  Co.  v.  Kisch,  L.  E.  2  H.  L.  99.  Another  good  ex- 
arajjle  may  be  found  in  Smith  v.  Land  Corporation,  28  Ch.  Div.  7. 

3  Arkwright  v.  Newbold,  17  Ch.  Div.  301.  'Nobody  was  ever 
lucky  enough  to  sell  a  property  without  having  some  considerable 
deduction  made  out  of  the  gross  price,  there  being  such  persons  as 
auctioneers  and  solicitors  to  be  paid.'     James,  L.  J. 


Chap.  I.  §  2]  DECEIT.  33 

The  defendant  cannot,  then,  escape  liability  by  showing 
tliat  the  representation  was,  if  literally  taken,  true,  or  true 
if  taken  in  some  forced  or  unnatural  sense. ^  So  too  the 
defendant  cannot  rely  upon  the  truth  of  the  actual  lan- 
guage used,  when  that  is  but  part  of  the  whole  state  of 
facts,  and  what  was  suppressed  would,  had  it  been  stated, 
have  given  to  the  language  used  a  contrary  effect.  If  the 
part  suppressed  would  have  made  the  part  stated  false, 
there  is  a  false  representation.'^  For  example :  The  de- 
fendant, desirous  of  buying  stock  of  the  plaintiff,  a  lady, 
of  the  value  of  which  he  knows  that  she  is  ignorant, 
tells  her  of  a  fact  calculated  to  depreciate  the  value  of  the 
stock,  but  omits  to  disclose  to  her  other  facts  within  his 
knowledge  which  would  have  given  correct  information 
upon  the  subject.  This  is  a  breach  of  duty  to  the  plain- 
tiff. ^  Again  :  The  plaintiff,  being  about  to  supply  the 
defendant's  son  with  goods  on  credit,  asks  the  defendant 
if  the  son  has  property  of  the  value  of  £300,  as  the  son 
has  asserted.  The  defendant  answers  in  the  affirmative, 
stating  that  he  has  advanced  the  sum  to  his  son,  but  fail- 
ing to  state  that  his  son  has  given  his  promissory  note  for 
the  amount.  This  is  a  false  representation,  though  true 
in  a  literal  sense.* 

§  3.     Of  Defendant's  Knowt^edge  of  Falsity. 

In  order  to  entitle  a  plaintiff  to  recover  damages  for 
misrepresentation,  it  is  necessary,  by  the  current  of  author- 
ity, for  him  to  prove  that  the  defendant  made  the  false 
representation  fraudulently.     A  contract  may,  indeed,  in 

1  Mizner  v.  Knssell,  29  Mich.  229. 

2  Peek  V.  Gurney,  L.  R.  6  H.  L.  377,  403,  Lord  Cairns  ;  Central 
Ry.  Co.  V.  Kisch,  L.  R.  2  H.  L.  99,  113. 

3  Mallory  v.  Leach,  35  Vt.  156. 
*  Corbett  v.  Brown,  8  Bing.  33. 

S 


34  LAW   OF   TORTS.  [Part  L 

many  cases  be  rescinded  or  its  enforcement  snccessfully 
resisted,  for  an  innocent  misrepresentation,  that  is  to  say, 
for  a  false  representation  justly  believed  to  be  true  at  the 
outset  by  the  party  who  made  it ;  ^  but  if  damages  are 
sought,  fj'aud  must  be  proved,  whether  at  law  or  in 
equity.^ 

Fraud,  within  the  meaning  of  this  rule,  may  be  proved 
in  one  of  four  ways,  according  to  the  nature  of  the  case. 
It  may  be  proved  by  showing  (1)  that  the  defendant  made 
the  representation  with  knowledge  of  its  falsity,  or  (2) 
that  he  made  it  recklessly,  without  knowing  whether  it 
was  true  or  false,  or  (3)  that  he  made  it  positively  as,  or 
apparently  as,  of  his  own  knowledge,  when  he  only  be- 
lieved it  to  be  true  without  having  actual  knowledge,  or 
(4)  that  he  made  it  under  circumstances  in  which  he  was 
so  specially  related  to  the  facts  that  it  was  his  duty  to 
know  whether  the  representation  was  true  or  not.^ 

1  Arkwright  v.  Newbold,  17  Cb.  Div.  301  ;  Redgrave  v.  Hurd,  20 
Ch.  Div.  1  ;  Blackmail  v.  Juhiison,  35  Ala.  252  ;  Sledge  v.  Scott,  56 
Ala.  202. 

2  Case  V.  Boughtou,  11  Wend.  106,  108  ;  Moi-gan  v.  Skiddy,  62 
N.  Y.  319  ;  Cragie  v.  Hadley,  99  N.  Y.  131  ;  Cole  v.  Cassiday,  138 
Mass.  437  ;  Bowker  v.  Delong,  141  Mass.  315  ;  Mahurin  v.  Harding, 
28  N.  H.  128  ;  Holdom  v.  Ayer,  110  111.  448  ;  Lannii  v.  Port  Deposit 
Assoc.  42  Md.  233  ;  Dunn  v.  White,  63  Mo.  181  ;  Collins  v.  Jackson, 
54  Mich.  186  ;  Spangler  v.  Chapman,  62  Iowa,  144  ;  Sims  v.  Eiland, 
57  Miss.  83  and  607  ;  Derry  v.  Peek,  14  App.  Cas.  337,  reversing  37 
Ch.  Div.  541  ;  Joliffe  v.  Baker,  11  Q.  B.  D.  255  ;  Arkwright  v.  New- 
bold,  17  Cb.  Div.  301,  320  ;  Redgrave  v.  Hurd,  20  Ch.  Div.  1  ;  Reese 
Mining  Co.  v.  Smitb,  L.  R.  4  H.  L.  64  ;  Collins  v.  Evans,  5  Q.  B. 
820,  Ex.  Ch.  ;  Ormrod  ti.  Hutb,  14  M.  &  W.  650,  Ex.  Ch.;  Childers 
V.  Wooler,  2  El.  &  E.  287  ;   Evans  v.  Edmond.s,  13  C.  B.  777,  786. 

Proving  the  defendant's  knowledge  of  the  falsity  of  his  representa- 
tion is  often  called  proving  the  'scienter,  from  a  term  used  in  the  old 
Latin  precedents  of  declaration. 

8  As  to  knowledge  of  falsity,  that  will  be  sufficient,  as  far  as  it  goes, 
for  any  representation  falling  within  the  notice  of  the  law.  As  to  the 
second  and  third  aspects  of  the  case,  see  Chatham  v.  Mofi'att,  147  Mass. 


Chap.  I.  §  3]  DECEIT.  35 

The  fourth  of  these  aspects  of  the  case  calls  for  a  few 
remarks.  There  tlie  defeudant  stands  in  a  peculiar  situa- 
tion in  regard  to  the  facts  ;  the  facts  are  specially  within 
his  reach  ;  they  are  not  facts  that  others  may,  even  by 
inquiry,  know  as  well.  The  result  is,  that  any  represen- 
tation made  by  him  touching  them  is  likely  to  carry  great 
weight,  greater,  other  things  being  equal,  than  represen- 
tations made  in  other  cases.  This  fact  may  well  be  held 
enough  to  govern  his  conduct,  and  to  require  him  to  know 
the  truth  of  the  representation  ;  in  a  word,  he  may  be  held 
practically  to  have  warranted  the  representation  to  be 
true,  and,  warranting  it,  he  cannot  require  the  party  with 
whom  he  has  dealt  to  prove  that  he  knew  it  to  be  false 
when  he  made  it.^ 

This  phase  of  fraud  may  accordingly  be  treated  as  a 
case  either  of  warranty  or  of  deceit.'-^  It  is  believed  that 
cases  of  implied  as  well  as  of  express  warranty  are  capa- 
ble of  being  treated  as  falling  under  the  head  of  deceit  as 

403,  C.  Allen,  J.  :  '  The  fraud  consists  in  stating  that  the  party  knows 
the  thing  to  exist,  when  he  does  not  know  it  to  exist ;  and  if  he  does 
not  know  it  to  exist,  he  must  ordinarily  be  deemed  to  know  that  he 
does  not.  Forgetfulness  of  its  existence  after  a  former  knowledge,  or  a 
mere  belief  of  its  existence,  will  not  warrant  or  excuse  a  statement  of 
actual  knowledge.'  This  rule  is  sweeping,  for  most  representations 
sued  upon  are  positive  assertions  as  of  knowledge.  The  rule  may  not 
prevail  eveiywhere,  but  it  appears  to  be  sound. 

i  See  White  v.  Madison,  26  N.  Y.  117,  124;  .lefts  v.  York,  10 
Cush.  392,  395,  Shaw,  C.  J.  ;  Collen  v.  Wright,  8  El.  &  B.  647,  Ex. 
Ch.  See  Denton  v.  Great  Northern  Railway  Co.  H  El.  &  B.  860,  in  re- 
gard to  representations  by  railway  time  tables.  Whether  the  text 
would  apply  geneiuUy  to  representations  made  by  any  with  whom  the 
plaintiff  was  not  dealing,  quaere.  (In  such  cases  'warranty'  would  be 
a  tei-m  of  convenience  merely).  Compare  the  distinction  taken  in 
Einstein  v.  Marshall,  58  Ala.  153  ;  but  that  may  not  have  been  intended 
to  apply  to  cases  like  that  of  the  text. 

2  In  Jefts  V.  York,  supra.  Chief  Justice  Shaw  says  of  implied  repre- 
sentations of  agency  that  the  action  should  be  in  tort. 


36  LAW  OF  TORTS.  [Part  L 

thus  explained.^  A  typical  illustration  will  serve  to  make 
the  application  of  these  remarks  clear :  If  a  person  as- 
sume to  act  for  another  in  respect  of  a  matter  over  which 
he  has  no  authority,  he  renders  himself  liable  for  misrep- 
resentation to  the  person  whom  he  may  thus  have  misled, 
though  he  may  have  honestly  believed  that  he  had  the 
authority  assumed.'^  The  matter  of  his  authority  was  a 
fact  peculiarly  within  his  own  means  of  knowledge,  and 
it  was  therefore  his  duty  to  acquaint  himself  with  the 
situation.  And  this  matter  of  representations  of  author- 
ity has  sometimes  received  a  pretty  wide  interpretation. 3 
Cases  falling  under  this  phase  of  the  subject  appear, 
however,  apart  from  questions  of  authority  or  agency, 
and  other  cases  of  warranty,^  to  stand  upon  narrow 
ground,  and  the  principle  of  liability  is  not  to  be  extended 
to  cases  not  clearly  within  it.  Thus,  the  fact  that  a  per- 
son allows  his  name  to  be  used  as  director  or  trustee 
of  a  corporation  or  other  company,  in  prospectuses  con- 

1  For  the  purpose  of  defence  to  or  rescission  of  most  contracts,  by 
reason  of  misrepresentations  which  were  innocent,  it  is  not  necessary 
that  these  should  have  been  warranties.  Defence  or  rescission  is  to 
be  distinguished  from  an  action  for  damages.  That,  at  all  events,  is 
the  more  general  rule.  For  the  rule  in  Alabama  see  Einstein  v.  Mar- 
shall, 58  Ala.  153. 

2  Jefts  V.  York,  ut  supra  ;  White  v.  Madison,  ut  .supra  ;  Mahurin 
V.  Harding,  28  N.  H.  128  ;  Noyes  v.  Loring,  55  Maine,  408  ;  Collen  v. 
Wright,  8  El.  &  B.  647,  658.  The  term  '  warranty '  here  is  conven- 
tional. See  .also  Eandell  v.  Trimen,  18  C.  B.  786  ;  Firbank  v.  Hum- 
phreys, 18  Q.  B.  D.  54  ;  Seton  v.  Lafone,  19  Q.  B.  D.  68.  The  majority 
in  CoUen  v.  Wright  would  no  doubt  have  agi-eed  that  an  action  for  de- 
ceit could  have  been  maintained.     See  Jefts  v.  York. 

*  See  May  v.  Western  Union  Tel.  Co.  112  Mass.  90,  which  goes  to 
the  verge  of  interpretation.  When  the  facts  supposed  to  create  the 
authority  are  fully  stated,  and  no  warranty  is  created,  the  plaintiff 
has  taken  his  own  risk.     Newmann  v.  Sylvester,  42  Ind.  106. 

*  See  e.  g.  French  v.  Vining,  102  Mass.  132,  sale  of  food  for  cattle  ; 
Jeffery  v.  Bigelow,  13  Wend.  518. 


Chap.  I.  §  3]  DECEIT.  37 

taining  false  representations,  does  not  impose  upon  him 
iu  law  the  duty  to  know  the  truth  of  the  statements 
and  so  subject  him  to  liability.  To  prove  such  fact  is 
not  to  prove  fraud. ^ 

What  creates  the  duty  to  know  the  facts,  in  other  cases 
than  ordinary  warranty,  is  a  difficult  question  to  answer  ; 
perhaps  it  is  incapable  of  being  answered  in  the  way  of 
any  very  perspicuous  proposition.  The  following  rule, 
laid  down  by  an  Irish  judge,  wanting  somewhat  indeed 
in  defiuiteness,  is  all,  perhaps,  that  the  nature  of  the  case 
permits :  AVhat  a  man  must  know,  it  was  in  substance 
declared,  must  have  regard  to  his  particular  means  of 
knowledge  and  to  the  nature  of  the  representation ;  and 
this  must  be  subject  to  the  test  of  the  knowledge  which  a 
man,  paying  that  attention  which  every  one  owes  to  his 
neighbor  in  making  a  representation  to  be  acted  upon, 
would  have  acquu-ed  in  the  particular  case  by  the  use  of 
such  means. ^ 

§  4.     Of  Plaintiff's  Ignorance  of  Falsity. 

The  next  element  of  the  breach  of  duty  is  that  requiring 
the  plaintiff  to  show  that  he  was  ignorant  of  the  truth  of 
the  matter  concerning  which  the  representation  was  made, 
and  believed  that  it  was  true. 

Both  of  these  situations  must,  iu  general,  be  true  of 
the  plaintiff  ;  he  must  have  been  ignorant  of  the  true  state 
of  things,  and  have  trusted  the  representation  of  them  as 
made  by  the  defendant.  He  must  have  been  deceived  ; 
and  to  render  the  defendant  liable,  the  plaintiff  must 
have  been  deceived  by  the  defendant.  If  the  plaintiff 
had  knowledge  of  the  facts  in  question,  or  if  without 
having  knowledge   thereof   he   acted  upon   independent 

1  Morgan  v.  Skiddy,  62  N.  Y.  319  ;  Western  Bank  v.  Addie,  L.  K. 
1  H.  L.  Sc.  145. 

2  Doyle  V.  Hort,  4  L.  R.  Ir.  661,  670,  Palles.  C.  B. 


38  LAW  OF  TORTS.  [Part  I. 

information,  and  not  upon  a  belief  of  the  truth  of  the 
defendant's  representation,  he  is  in  the  one  case  not 
deceived  at  all,^  and  in  the  other  is  not  deceived  by  the 
person  of  whom  he  complains. 

Should  a  purchaser  of  property  therefore  make  all 
desired  investigation  of  his  own  in  regard  to  the  truth  of 
representations  made  by  the  A-endor,  he  will  be  barred 
from  alleging  that  the  latter  made  false  representations. 
More  than  this,  if  in  such  a  case  there  was  no  warranty, 
the  purchaser  cannot  say  that  the  vendor  concealed  facts 
of  importance  from  him  ;  provided  nothing  was  done  or 
said  to  prevent  the  pui'chaser  from  making  as  ample  inves- 
tigation as  he  chose.  For  example :  The  defendant, 
vendor  of  a  large  tract  of  land,  represents  the  estate  to 
contain  only  fifty  or  sixty  acres  of  untillable  soil,  and  the 
plaintiff,  the  purchaser,  before  the  sale,  examines  all  the 
laud  more  than  once.  The  defendant  is  not  guilty  of  a 
breach  of  duty  to  the  plaintiff,  though  it  turns  out  that  the 
estate  contains  three  hundred  acres  unfit  for  cultivation.^ 

Aside  from  such  cases,  there  are  few  cases  in  which  the 
plaintiff,  if  he  was  actually  ignorant  of  the  true  state  of 
facts  and  supposed  the  representation  to  be  true,  is  con- 
sidered by  the  law  as  fixed  with  knowledge  of  the  facts  ; 
the  duty  resting  upon  him  being,  as  it  seems,  only  a  general 
duty  of  diligence,  rather  than  a  duty,  like  that  in  the  pre- 
ceding section,  towards  the  opposite  party.  The  imputa- 
tion of  knowledge  is  then  of  much  lessened  force ;  it  is 
generally,  indeed,  reduced  to  a  case  of  presumptive  evi- 
dence, if  it  arises  at  all. 

It  has  sometimes  been  laid  down  that  if  the  means  of 
knowledge  be  equally  open  to  both  parties,  the  plaintiff, 

1  Hager  v.  Grossman,  31  Ind.  223  :  Tuck  v.  Downing,  76  111.  71  ; 
Whiting  V.  Hill,  23  Mich.  399. 

2  Halls  V.  Thompson,  1  Smedes  &  M.  443. 


Chap.  I.  §  4.]  DECEIT.  39 

as  a  prudent  man,  must  be  deemed  to  have  availed  him- 
self of  such  means  (or  is  not  to  be  excused  if  he  has 
not  done  so),  and  hence  that,  in  contemplation  of  law,  he 
has  not  been  deceived  by  the  defendant's  misrepresenta- 
tion ;  the  result  being  that,  unless  there  was  a  warranty, 
no  action  can  be  maintained.^  There  is,  indeed,  no  liabil- 
ity m  any  case  in  which  the  party  complained  of  has 
made  no  misrepresentation,  has  not  been  guilty  of  fraud 
of  any  kind,  and  has  made  no  warranty.  '  Caveat 
emptor.'  But  for  the  broad  doctrine  before  stated,  there 
is  little  support  in  the  more  recent  specific  adjudications 
upon  the  subject. 
■^  Some  courts,  however,  have  come  to  draw  a  distinction 
between  means  of  knowledge  at  hand  and  general  means 
of  knowledge,  in  cases  of  misrepresentation  ;  enforcing 
the  doctrine  in  question  where  the  means  are  at  hand  (and 
only  in  such  cases) .  For  example  :  The  plaintitf  buys  a 
quantity  of  manufactured  rubber  goods  from  tlie  defend- 
ant at  the  defendant's  factory.  The  defendant  makes 
false  representations,  but  no  warranty,  in  regard  to  tlie 
goods,  and  the  plaintift",  because  of  the  representations, 
does  not  examine  them  specially,  though  they  are  at  hand 
and  in  condition  to  be  exammed.  It  is  held  that  the 
plaintiff  cannot  recover  damages.^ 

Even  this  doctrine  can  hardly  be  considered  as  accept- 
able generally,  in  the  light  of  most  of  the  recent  author- 
ities as  distinguished  from  the  mere  dicta  of  the  books. 
It  may  be  hard  to  believe  that  a  plaintiff  did  not  avail 
himself  of  means  of  knowledge  du-ectly  at  hand  ;  but 
there  is  in  principle,  and  by  authority,  only  a  probability 

1  Vernon  v.  Keys,  12  Eiist,  632;  Slaughter  v.  Gerson,  13  Wall. 
379,  dictum  ;  Messer  v.  Smith,  59  N.  H.  41  ;  Leavitt  v.  Fletcher,  60 
N.  H.  182  ;  Lytle  v.  Bird,  3  Jones,  222  ;  Fields  v.  Rouse,  ib.  72. 

2  Salem  Rubber  Co.  v.  Adams,  23  Pick.  256.  Followed  in  Brown 
V.  Leach,  107  Mass.  36 i.     See  1  Bigelow,  Fraud,  529. 


40  LAW  OF  TORTS.  [Pakt  I. 

of  fact  to  be  overcome  even  iu  such  a  case.  There  is,  by 
the  better  rule,  uo  oouchision  of  law  either  that  the  plain- 
tiff availed  himself  of  the  meaus,  or  that  it  was  his  duty 
to  do  so  ;  the  plaintiff  may  still  show  that  he  was  misled 
by  the  defendant's  representation.^  For  example:  A 
prospectus  of  a  company  iu  process  of  formation  falsely 
states  that  the  capital  stock  is  a  certam  sum,  and  the 
plaintiff  is  induced  by  this  statement  to  subscribe  for 
shares  of  stock  in  the  company.  The  plaintiff  might  have 
learned  the  true  state  of  things  by  examining  the  records 
of  the  company,  which  were  open  to  his  inspection,  but 
does  not  make  the  examination.  He  is  not  barred  of 
redress.^  Again  :  The  defendant,  vendor  of  land,  makes 
to  the  plaintiff  false  representations  concerning  his  title 
to  the  land.  An  examination  of  the  public  registry  would 
disclose  the  truth.  The  plaintiff  may  rely  upon  the  rep- 
resentations, and  need  not  go  to  the  registry.^ 

1  Mead  v.  Bunn,  32  N.  Y.  275,  280  ;  Seliweiik  v.  Naylor,  102  N.  Y. 
683  ;  Liiiingtoii  v.  Strong,  107  111.  295  ;  Weber  v.  Weber,  47  Jlich. 
569  ;  West  v.  Wright,  98  Ind.  335  ;  McClellan  v.  Scott,  24  Wis.  81, 
87  ;  Griffith  v.  Hanks,  46  Texas,  217  ;  Central  Ry.  Co.  v.  Kisch,  L.  R. 
2  H.  L.  99,  120  ;  Smith  v.  Land  Cor])oration,  28  Ch.  Div.  7  ;  Red- 
grave V.  Hurd,  20  Ch.  Div.  1,  13  ;  Reynell  v.  Sprye,  1  De  G.  M.  &  G. 
668,  709  ;  Stanley  v.  McGanran,  11  L.  R.  Ir.  314  ;  Sankey  v.  Alexander, 
Ir.  R.  9  Ex.  259,  316. 

2  Central  Ry.  v.  Kisch,  snpra. 

3  Parham  v.  Randolph,  4  How.  (Miss.)  435  ;  Kiefer  v.  Rogers,  19 
Minn.  32  :  Holland  v.  Anderson,  38  Mo.  55.  See  Rhode  v.  Alley,  27 
Texas,  443. 

Peihaps,  however,  because  of  the  time  and  expense  possibly  to  be 
incurred,  the  registry  would  not  be  considered  as  at  hand,  so  as  to  be 
immediately  available  for  verification.  A  fortiori,  of  parties  in  Massa- 
chusetts in  regard  to  the  Patent  Office  at  Washington.  David  v.  Park, 
103  Mass.  501.  So  too  of  a  piece  of  land  covered  with  snow  :  Martin 
V.  Jordan,  60  Maine,  531  ;  Rhode  v.  Annis,  75  Maine,  17  ;  or  flooded  : 
Jackson  ;;.  Armstrong,  50  Mich.  65.  Upon  this  whole  subject  of 
means  of  knowledge  see  1  Bigelow,  Fraud,  522  et  .seq 


Chap.  I  §  4.]  DECEIT.  41 

The  subject  may  be  further  illustrated  by  a  quite  differ- 
ent sort  of  ease.  Every  mau  is  presumed  to  know  the 
contents  of  a  written  contract  signed  by  him ;  but  no 
presumption  of  knowledge  will  stand  in  the  way  of  a 
charge  of  misrepresentation  or  other  fraud  in  regard  to 
the  contents  of  the  writing.^  No  doubt  it  would  be  im- 
prudent not  to  read  or  to  require  the  reading  of  an  instru- 
ment before  signing  or  accepting  it ;  indeed,  the  courts 
would  turn  a  deaf  ear  to  a  man  who  sought  to  get  rid  of 
a  contract  solely  on  the  ground  that  its  terms  were  not 
what  he  supposed  them  to  be.  But  the  case  would  be 
different  where  a  plaintiff  charged  fraud  upon  the  defend- 
ant in  reading  the  contract  to  him,  or  in  stating  its  terms, 
or  in  secretly  inserting  terms  not  agreed  upon.^ 

The  usual  course  of  proceeding  in  regard  to  cases  of 
the  kind  now  under  consideration  is  to  rescind  the  con- 
tract ;  but  such  a  course  may  have  become  impossible.^ 
And  whether  it  be  possible  or  not,  it  is  a  well-estab- 
lished rule  of  law  that  one  who  has  been  induced  by 
fraud  to  enter  into  a  contract,  whether  executory  or 
wholly  (as  by  sale  and  payment)  executed,  may  treat 
the  contract  as  binding,  retain  its  fruits,  and  sue  for  the 
fraud  by  which  it  was  effected.*     Hence  in  the  case  of  a 

1  Albany  Inst,  for  Savings  v.  Burdick,  87  N.  Y.  40  ;  Robinson  v. 
Glass,  94  Ind.  211  ;  Hawkins  v.  Hawkins,  50  Cal.  556  ;  Schuylkill  v. 
Copley,  67  Penn.  St.  386  ;  Martindale  v.  Harris,  26  Ohio  St.  379  ; 
Foster  v.  Mackinnon,  L.  R.  4  C.  P.  704  ;  Stanley  v.  McGauran,  11 
L.  R.  Ir.  314. 

2  Albany  Inst,  for  Savings  v.  Burdick,  supra  ;  Stanley  v.  McGauran, 
.supra. 

3  See  Clarke  v.  Dickson,  El.  B.  &  E.  148. 

4  Strong  V.  Strong,  102  N.  Y.  69  ;  Gould  v.  Cayuga  Bank,  86  N.  Y. 
75  ;  "Whitney  v.  Allaire,  4  Denio,  554  ;  s.  c.  1  Comst.  305  ;  Mallory  v. 
Leach,  35  Vt.  158  ;  Clarke  v.  Dickson,  supra  ;  Regina  v.  Saddlers'  Co., 
10  H.  L.  Cas.  404,  421  ;  AVestern  Bank  v.  Addie,  L.  R.  1  H.  L.  Sc, 
167. 


42  LAW  OF  TORTS.  [Part  L 

written  contract  knowingly  misread,  misstated,  or  mis- 
written,  tlie  party  wronged  may  (probably)  maintain  an 
action  of  deceit  for  the  damage  he  may  have  incurred, 
while  at  the  same  time  treating  the  contract  as  in  itself 
valid. 

But  the  defendant  must  have  been  guilty  of  fraud,  as 
by  knowingly  misreading  or  misstating  the  instrument. 
Should  he  profess  to  state  no  more  than  the  effect  of 
a  long  writing,  he  could  not,  it  seems,  be  liable  in  dam- 
ages for  a  mistake ;  though  equity  would  reform  the 
instrument  at  the  instance  of  the  party  injured. 

The  explanation  of  all  this  is  not  far  to  seek.  It  is 
not  for  a  person  who  admits  that  he  has  been  guilty 
of  endeavoring  to  mislead  another  by  misrepresentation, 
to  say  to  him,  when  called  to  account,  '  You  ought  not 
to  have  trusted  me  ;  you  were  negligent ;  you  ought  to 
have  made  inquiry.'^  The  law  requires,  indeed,  the 
exercise  of  prudence  by  both  parties  ;  but  that  is  all.  If 
prudence  on  the  one  side  has  been  disarmed  by  misrepre- 
sentation on  the  other,  the  law  cannot  justly  refuse  re> 
lief.  Besides,  the  case  of  a  plaintiff  so  situated  is  quite 
different  from  that  of  a  defendant  so  related  to  the 
facts  as  to  be  bound  to  know  the  truth.  In  this  latter 
case  no  one  has  misled  the  defendant ;  in  the  case  under 
consideration,  on  the  other  hand,  the  misrepresentation 
has,  upon  the  hypothesis,  misled  the  plaintiff. 

The  case  is  not  varied  in  law  by  the  circumstance  that 
the  plaintiff"  may  have  made  some  partial  examination  on 
his  own  behalf ;  if  still  he  was  misled,  and  prevented 
from  making  such  examination  as  otherwise  he  would 
have  made,  he  will  be  entitled,  so  far,  to  recover.'^    For 

1  Albany  Inst,  for  Savings  v.  Burdick,  87  N.  Y.  40  ;  Smith  v.  Land 
Corporation,  supra. 

2  Smith  V.  Land  Corporation,  28  Ch.  Div.  7  ;  Albany  List,  for  Sav 
ings  V.  Burdick,  supra. 


Chap.  I.  §  4.]  DECEIT.  43 

example  :  Representations  concerning  a  liotel  about  to  be 
sold  at  auction  are  made  by  the  seller  in  printed  particu- 
lars of  sale.  The  buyer,  having  seen  the  statements, 
sends  his  agent  to  look  over  the  premises  to  see  whether 
it  will  be  advisable  to  buy.  The  agent  goes  accordingly, 
and  having  made  some  examination,  advises  the  purchase, 
which  is  made.  The  buyer  may  show  that  he  was  induced 
by  the  representatious  of  the  seller  to  buy.^ 

The  case  will  of  course  be  different  if  the  defendant's 
representation  was  not  of  a  nature  to  mislead,  as  where 
it  is  a  statement  of  mere  opinion,  or  if  it  did  not  in 
fact  mislead.  And  where  the  facts  are  open  to  the 
plaintiff  equally  with  the  defendant,  there  is  a  presump- 
tion, it  seems,  that  the  plaintiff  availed  himself  of  the 
means  of  inquiry  ;  which  presumption  must  be  overcome 
before  he  can  recover. 

When  the  defendant  induces  the  plaintiff  to  abstain 
from  seeking  information,  mere  concealment  of  material 
facts  may  become  a  breach  of  duty  ;  and  redress  will 
not  be  refused  in  such  a  case  merely  because  a  sharp 
business  man  might  not  have  been  deceived.  Nor  is  the 
rule  of  law  different  when  the  defendant  suggests  exam- 
ination to  the  plaintiff,  but  in  such  a  way  as  to  indicate 
that  such  a  step  would  be  quite  unnecessary.  For  exam- 
ple :  The  defendant,  in  selling  to  the  plaintiff  property 
at  a  distance,  suggests  to  the  plaintiff  that  he  go  and 
look  at  the  property,  '  as  their  judgment  might  not  agree, 
and,  if  not  satisfied,  he  would  pay  the  plaintiff's  ex- 
penses, but  if  satisfied  the  plaintiff  should  pay  them  him- 
self.' This  is  deemed  to  justify  the  plaintiff  in  acting 
upon  the  defendant's  representations  without  examining 
the  property.^ 

1  Smith  V.  Land  Corporation,  supra. 

2  Webster  v.  Bailey,  31  Mich.  36. 


44  LAW   OF  TOKTS.  [Part  L 

Even  though  a  party  sell  at  the  risk  of  the  purchaser, 
'  with  all  faults,'  as  he  may,  he  will  have  no  right  to 
practise  fraud  ;  and  if  he  should  do  so  he  will  be  liable 
as  for  a  breach  of  his  legal  duty  to  the  purchaser.  For 
example :  The  defendant  sells  to  the  plaintiff  a  vessel, 
'  hull,  masts,  yards,  standing  and  running  rigging,  with 
all  faults,  as  they  now  lie.'  He,  however,  makes  a  false 
statement,  that  the  '  hull  is  nearly  as  good  as  when 
launched,'  and  takes  means  to  conceal  defects  which  he 
knew  to  exist.  This  is  a  breach  of  duty  to  the  plaintiff".^ 
But  the  case  would  be  dift'erent  if  the  seller,  though  aware 
of  the  defects,  do  nothing  to  conceal  them.^ 

When  the  parties,  by  reason  of  physical  or  mental 
infirmity  on  the  one  side,  or  of  the  fact  that  the  one 
party  is  in  the  occupation  or  management  of  the  other's 
business,  or  has  the  general  custody  of  his  body,  do  not 
stand  upon  an  equal  footing,  the  objection  to  a  suit  for 
false  representations,  that  the  party  to  whom  they  were 
made  was  negligent  in  not  making  inquiry  or  examina- 
tion, has  still  less  force.  Examples  of  this  class  of  cases 
may  be  readily  found  in  the  case  of  transactions  with  aged 
persons,  or  with  cestuis  que  trust  by  trustees,  or  with 
wards  by  guardians. 

Not  even  the  subsequent  acts  of  accepting  and  paying 
for  goods  upon  delivery  will  bar  the  purchaser  of  redress, 
though  the  goods  were  open  to  his  inspection  at  the  time, 
if  the  fraud  was  not  then  discovered,  and  especially  if 
such  acceptance  and  payment  were  procured  by  fraudu- 
lent artifices  on  the  part  of  the  vendor.^    For  example  : 

1  Schneider  v.  Heath,  3  Campb.  506.  See  Whitney  v.  Boardman, 
118  Mass.  242,  247  ;  George  v.  Johnson,  6  Hamph.  36. 

2  Baglehole  v.  "Walters,  3  Campb.  154  (overruling  Mellish  v.  Mot- 
teux,  Peake,  156)  ;  Pickering  v.  Dowson,  4  Taunt.  779;  Bywater  n. 
Richardson,  1  Ad.  &  E.  508. 

3  See  Clarke  v.  Dickson,  El.  B.  &  E.  148. 


Chap.  I.  §  5.]  DECEIT.  45 

The  defendant,  a  manufacturer  and  vendor  of  tobacco, 
knowingly  uses  damaged  tobacco  in  the  manufacture,  and 
intentionally  uses  boxes  of  green  lumber ;  and  while  the 
tobacco  is  being  made  up  he  exhibits  to  the  plaintiff  from 
time  to  time,  in  order  to  mislead  him,  specimens  of 
tobacco  as  of  the  kind  he  (the  defendant)  is  supplying  the 
plaintiff,  when  in  fact  the  defendant  is  supplying  him  with 
a  different  and  inferior  kind.  Notwithstanding  accept- 
ance of  the  goods  and  payment  for  them,  the  plaintiff  is 
entitled  to  damages  against  the  defendant.^ 

§  5.     Of  the  Intention  that  the  Representation 
should  be  acted  upon. 

In  regard  to  that  element  of  the  breach  of  duty  under 
consideration  which  requires  the  plaintiff  to  prove  that  the 
defendant  intended  his  representation  to  be  acted  upon,  it 
is  to  be  observed  that,  while  the  rule  is  probably  inflexi- 
ble, its  force  appears  chiefly  in  those  cases  in  which  the 
deception  was  practised  with  reference  to  a  negotiation 
with  a  third  person,  and  not  with  the  defendant.  In  cases 
of  that  kind,  an  instance  of  which  is  found  in  false  repre- 
sentations to  the  plaintiff  of  the  solvency  of  a  third  per- 
son,^  it  is  plain  that  the  transaction  with  such  third  person, 
though  shown  to  have  been  caused  by  the  defendant's 
false  representation,  affords  no  evidence  of  an  intention 
in  the  defendant  that  the  representation  should  be  acted 
upon  by  the  plaintiff.  It  would  be  perfectly  consistent 
with  mere  evidence  that  the  plaintiff  acted  upon  the  de- 
fendant's misrepresentation  in  a  transaction  with  a  third 
person,  that  the  defendant,  though  he  knew  the  falsity  of 
his  representation,  did  not  know,  and  had  no  reason  to 

1  Mc  Aroy  v.  Wright,  25  Ind.  22.  An  act  does  not  amount  to  the 
waiver  of  a  wrong  unless  it  be  done  with  knowledge  of  the  wrong. 

2  Pasley  v.  Freeman,  3  T.  R.  51,  ante,  p.  27. 


46        ■  LAW  OF  TORTS.  [Pakt  I. 

suppose,  that  the  plaintiff  would  act  upon  it.  The  repre- 
sentation might,  for  all  this,  have  been  a  mere  idle  false- 
hood, such  as  would  not  justify  any  one  in  acting  upon  it. 

It  follows  that  where  a  party  complains  of  false  repre- 
sentations, whereby  he  was  caused  to  suffer  damage  in  a 
transaction  with  some  third  person,  it  devolves  upon  him 
to  give  express  evidence  either  tliat  the  defendant  in- 
tended that  he  should  act  upon  the  representation,  or  that 
the  plaintiff  was  justified  in  inferring  such  intention,  —  it 
matters  not  which  ;  ^  and  that  it  is  not  enough  to  prove 
that  the  misrepresentation  was  made  with  knowledge  of 
its  falsity.^ 

When,  however,  the  effect  of  the  false  representation 
was  to  bring  the  plaintiff  into  a  business  transaction  with 
the  defendant,  the  case  is  quite  different.  Proof  of  such 
a  fact  shows  at  once  the  intent  of  the  defendant  to  induce 
the  plaintiff  to  act  upon  tlie  representation  ;  and  it  follows 
that  no  evidence  need  be  offered  of  an  intention  to  that 
effect,  or  of  reasonable  ground  to  suppose  an  intention. 
The  principle  appears  most  frequently  in  cases  of  sales  ; 
the  rule  of  law  being,  that  if  the  plaintiff,  the  purchaser, 
establish  the  fact  that  the  defendant,  the  vendor,  knew 
that  his  representation  was  false,  it  is  not  necessary  for 
the  plaintiff  to  give  further  evidence  to  show  that  the  de- 
fendant intended  to  induce  the  plaintiff  to  buy.^  For 
example :  The  defendant  sells  a  horse  to  the  plaintiff 
representing  that  it  is  sound,  when  he  knows  that  it  is 
not.     Further  evidence  of  intention  is  not  necessary.* 

1  See  Freeman-w.  Cooke,  2  Ex.  654  ;  Cornish  v.  Abington,  4  H.  & 
N.  549. 

2  See  Pasley  v.  Freeman,  3  T.  R.  5]  ;  s.  c.  L.  C.  Torts,  1. 

3  Collins  V.  Denison,  12  Met.  549  ;  Clafiin  v.  Commonwealth  Ins. 
Co.,  110  U.  S.  81  ;  Johnson  v.  Wallower,  15  Minn.  474  ;  s.  c.  18 
Minn.  288  ;  Foster  v.  Charles,  6  Ring.  396  ;  s.  c.  7  Ring.  105 ;  Polhill 
V.  Walter,  3  B.  &  Ad.  114. 

*  Collins  V.  Denison,  supra. 


Chap.  I.  §  6.]  DECEIT.  47 

Indeed,  it  is  probably  not  necessary  in  any  case,  if  the 
cause  of  action  is  carefully  stated,  that  it  should  appear 
tliat  the  defendant  intended  to  injure  the  plaintiff.  It 
has  already  been  stated  that  a  person  honestly  professing 
to  have  authority  to  act  for  another  is  liable  as  for  fraud 
for  the  damages  sustained,  if  he  has  not  the  authority.^ 
In  such  cases  it  is  obvious  that  the  representation  may 
have  been  made  for  the  benefit  of  the  plaintiff.^  So  too  in 
cases  in  which  the  defendant  has  made  the  misrepresenta- 
tion with  knowledge  of  its  falsity,  it  is  plain  that  he  may 
really  have  desired  and  expected  that  the  plaintiff  would 
derive  a  benefit  from  the  transaction. 

§  6.     Of  Acting  upon  the  Representation. 

It  is  fundamental  that  the  defendant's  representation 
should  have  been  acted  upon  by  the  plaintiff,  and  acted 
upon  to  his  injury,  to  enable  him  to  maintain  an  action 
for  the  alleged  breach  of  duty.^  Indeed,  fraudulent  con- 
duct or  dishonesty  of  purpose,  however  explicit,  will  not 
afford  a  cause  of  action  unless  shown  to  be  the  very 
ground  upon  which  the  plaintiff  acted  to  his  damage.* 
The  defendant  must  have  caused  the  damage. 

So  strong  is  the  rule  upon  this  subject  that  it  is  deemed 
necessary  to  this  action  that  the  damage  as  well  as  the 
acting  upon  the  representation  must  already  have  been 
suffered  before  the  bringing  of  the  suit,  and  that  it  is  not 
sufficient  that  it  may  occur.  For  example  :  The  defend- 
ant induces  the  plaintiff  to  indorse  a  promissory  note 
before  its  maturity  by  means  of  false  and  fraudulent  rep- 

1  Ante,  p.  36. 

2  See  Polhill  v.  Walter,  3  B.  &  Ad.  114. 

^  Pasley  v.  Freeman,  3  T.  R.  51  ;  Smith  v.-  Chadwick,  9  App.  Gas. 
187  ;  Freeman  v.  Venner,  120  Mass.  424. 
*  Rutherford  v.  Williams,  42  Mo.  18. 


48  LAW  OF  TORTS.  [Part  L 

resentations.  An  action  therefor  cannot  be  maintained 
before  the  plaintiff  has  been  compelled  to  pay  the  note.^ 

A  person  who  has  been  prevented  from  effecting  an 
attachment  npon  property  by  the  fraudulent  representa- 
tions of  the  owner  or  of  his  agent  is  deemed  to  have 
'suffered  no  legal  damage  thereby,  tiiough  subsequently 
another  creditor  should  attach  the  whole  property  of  the 
debtor  and  sell  it  upon  execution  to  satisfy  his  own  debt.'^ 
The  person  thus  deceived,  having  acquired  no  lien  upon 
or  right  in  the  property,  cannot  lose  any  by  reason  of  the 
deceit.  The  most  that  can  be  said  of  such  a  case,  it  has 
been  observed,  is  that  the  party  intended  to  attach  the 
property,  and  that  this  intention  has  been  frustrated ;  ^ 
and  it  could  not  be  certainly  known  that  that  intention 
would  have  been  carried  out.*  If  the  attachment  had 
been  already  levied  and  was  then  lost  through  the  deceit, 
the  rule  would  of  course  be  different.^ 

It  must  appear,  moreover,  that  the  plaintiff  was  entitled 
to  act  upon  the  representation  ;  and  this  will  depend  upon 
the  intention,  or  the  reasonably  presumed  intention,  of 
the  defendant.  The  representation  may  have  been  in- 
tended for  (1)  one  particular  individual  only  (in  which 
case  he  alone  is  entitled  to  act  npon  it),  or  (2)  it  may  have 
been  intended  for  any  one  of  a  class,  or  (3)  for  any  one 
of  the  public,  or  (4)  it  may  have  been  made  to  one  person 
to  be  communicated  by  him  to  another.  Any  one  so  in- 
tended, who  has  acted  upon  the  misrepresentation  to  his 
damage,  will  be  entitled  to  redress  for  any  damage  sus- 
tained by  acting  upon  the  representation."     For  example  : 

^  Freeman  v.  Venner,  120  Mass.  424. 

2  Bradley  v.  Ful'ier,  118  Mass.  239.  But  see  Kelsey  v.  Murphy,  26 
Penn.  St.  78. 

3  Id.  ;  Lamb  v.  Stone,  11  Pick.  527. 

*  Bradley  v.  Fuller,  siipra.  ^  Id. 

6  Richardson  v.  Silvester,  L.  R.  9  Q.  B.  34  ;  Swift  i'.  Winterbotham, 
L.  R.  8  Q.  B.  244  ;  Peek  v.  Gurney,  Law  R.  6  H.  L.  377. 


Cmap.  I.  §  7.]  DECEIT.  49 

The  defendants  put  forth  a  prospectus  to  the  public,  con- 
taining false  representations,  for  the  purpose  of  selling 
shares  of  stock  in  their  company.  The  plaintiff,  as  one 
of  the  public,  may  act  upon  the  representations,  and, 
having  bought  stock  of  the  company,  recover  damages  for 
the  loss  sustained  thereby.^ 


§  7.     Of  Slander  of  Title  and  Trademarks. 

The  foregoing  presentation  of  the  law  supposes  that  the 
representation  was  made  to  or  for  the  plaintiff.  But  there 
is  another  class  of  cases,  with  several  branches,  in  which 
the  situation  is  different.  A  representation  may  be  made 
of  a  man  or  of  his  property  to  his  injury,  as  well  as  to  him  ; 
still  this  class  of  cases  (probably)  stands  upon  the  same 
footing  as  the  cases  which  have  been  under  consideration. - 

False  representations  of  a  person  may  consist,  either  (1) 
in  disparaging  his  credit,  or  the  title  to  his  property,  or 
his  property  itself,  or  (2)  infringements  of  his  trademark 
or  sign  or  badge  of  business.  The  sul^ject  of  misrepre- 
sentations made  to  the  plaintiff  of  the  credit  of  a  third 
person  has  been  considered ;  ^  and  (in  principle)  there  is 
no  difference  between  such  a  case  and  that  of  misrepre- 
sentations to  a  third  person  of  the  plaintiff's  pecuniary 
standing.  The  representation  having  been  acted  upon  to 
the  plaintiff's  damage  by  the  person  to  whom  the  de- 
fendant made  it,  the  latter  is  liable  for  the  former's 
loss. 

If  the  representation  relate  to  the  plaintiff's  title  to  prop- 
erty or  to  the  quality  of  the  property  itself,  the  wrong 

1  Id.  Contra,  if  the  shares  are  bought  on  the  market.  Peek  v.  Gur- 
ney,  supra.  Comp.  however  New  Yoik  R.  Co.  v  Schuyler,  34  N.  Y. 
30  ;  Bruff  v.  Mali,  36  N.  Y.  200,  205. 

2  See  L.  C.  Torts,  54-59,  69-72. 

3  Ante,  pp.  27,  28. 

4 


50  LAW  OF  TORTS.  [Part  I. 

clone  is  termed  slander  of  title ;  if  it  be  an  attempt  to 
palm  off  the  defendant's  goods  in  trade  as  the  goods  of 
the  plaintiff,  it  will  commonly  be  the  ease  of  an  infringe- 
ment of  his  trademark.^ 

In  the  action  for  slander  of  title,  it  devolves  upon  the 
plaintiff  to  prove  that  the  statement  of  the  defendant  was 
false,  was  made  with  actual  malice,"^  and  that  it  has  been 
followed  by  damage.^ 

The  interpretation  put  upon  the  elements  of  the  action 
b}!  the  authorities  shows  that  they  are  substantially  equiv- 
alent to  the  correspondi"ng  elements  of  the  ordinary  action 
of  deceit.''  The  false  representation  (which  clearly  must 
have  been  material,  and  otherwise  of  the  nature  of  the 
representation  above  considered)  must,  it  seems,  have 
been  made  with  knowledge  of  its  falsity  and  with  actual 
or  apparent  intent  to  deceive  ;  this,  too,  would  show  the 


1  An  infringement  of  a  patent,  it  should  be  observed,  is  not  so  much 
an  attempt  to  obtain  the  benefit  of  another's  reputation  in  business  as 
to  make  and  vend  the  very  same  article,  to  do  which  an  exclusive  right 
has  been  given  to  another.  There  is  no  necessary  attempt  to  deceive 
any  one  in  the  infringement  of  a  patent ;  and  the  same  is  measurably 
true  of  infringement  of  copyrights.  These  subjects,  therefore,  do  not 
belong  to  the  law  of  deceit.  An  invasion  of  a  patent  or  a  copyright  is 
simply  an  invasion  of  a  right  of  projjerty,  like  a  trespass  upon  real 
estate.  Indeed  the  same  is  now  become,  to  some  extent,  true  of  trade- 
marks. Leather  Cloth  Co.  v.  American  Leather  Cloth  Co.,  4  De  G.  J. 
&  S.  137  ;  post,  p.  233. 

2  Pater  v.  Baker,  3  C.  P..  S31,  868  ;  Pitt  v.  Donovan,  1  Maule  &  S. 
639  ;  Kendall  v.  Stone,  2  Sandf.  2fi9  (revei'sed  on  another  point,  5 
N.  Y.  14)  ;  McDaniel  v.  Baca,  2  Cal.  868  ;  Stark  v.  Chitwood,  5  Kans. 
141. 

8  Malaehy  v.  Soper,  3  Ring.  N.  C.  371.  See  L.  C.  Torts,  54-59 
*  The  form  of  declaring  has  been  on  the  model  of  the  action  for 
slander  or  libel.  See  1  Bigelow,  Fraud,  557,  558.  But  the  significant 
fact  is  that  the  plaintiff  must  prove  the  falsity  of  the  statement,  actual 
malice,  and  damage.  Such  facts  are  no  necessary  part  of  the  plaintiff's 
case  in  an  action  for  defamation,  as  will  be  seen. 


Chap.  I.  §7.]  DECEIT.  51 

'  actual  majice '  above  mentioned.^  Innocent  misrepre- 
sentation would  not  create  liability.  For  example  :  The 
defendant  states  to  a  third  person  with  whom  the  plaintiff 
Las  made  a  contract  for  the  sale  of  certain  lands,  that 
the  plai^itiff's  '  title  to  those  estates  will  hereafter  sooner 
or  later  be  coqtested.  At  the  time  they  were  sold  by  Mr. 
Y  [the  plaintiff's  vendor],  he  was  not  in  a  state  of  sound- 
ness and  competency  to  do  so.'  The  defendant  makes 
this  statement  as  trustee  of  the  particular  lands,  in  good 
faith,  believing  it  to  be  true.  This  is  no  breach  of  duty 
to  the  plaintiff.^  The  same  case  would  afford  an  exam- 
ple of  the  necessity  of  proof  of  actual  damage  by  sup- 
posing that  the  plaintiff  had  not  been  negotiating  for 
the  sale  of  the  lands  at  the  time  of  the  statement.^ 

And  the  question  of  the  defendant's  liability  must  turn, 
further,  upon  the  evidence  whether  the  thu-d  person,  to 
whom  the  defendant  made  the  false  statement,  was 
deceived  by  and  acted  upon  that  iiarticular  statement. 
If  such  person  knew  the  truth  of  the  matter,  or  acted 
upon  other  information  regardless  of  the  defendant's 
statement,  the  latter  could  not  be  deemed  in  any  proper 
sense  to  have  caused  the  damage  of  which  the  plaintiff 
complains.  ** 

With  regard  to  the  law  of  trademarks  (using  this  as 
a  generic  term  to  cover  all  kinds  of  signs  and  badges 
of  business),  similar  observations  are  to  be  made.  In 
order  to  sustain  an  action  of  deceit  for  a  breach  of  duty 
by  the  defendant  to  the  plaintiff  in  the  use  of  a  trade- 
mark, it  must  appear  (1)  that  the  defendant  knew  of  the 
existence  of  the  plaintiff's  mark  when  he  committed  the 
alleged  wrong,  (2)  that  he  intended  to  palm  off  the  goods 

^  Pitt  V.  Donovan,  supra.  ^  Malachy  v.  Soper,  supra. 

8  See  Pitt  V.  Donovan,  1  Maule  &  S.  6-39  ;  Pater  v.  Baker,  3  C.  B. 
831,  868  ;  Wren  v.  Weild,  L.  R.  4  Q.  B.  730  :  L.  C.  Toits,  ut  supia. 


52  LAW  OF  TORTS.  [Part  L 

as  the  goods  of  the  plaintiff,  or  to  represent  that  the  busi- 
ness which  he  was  carrying  on  was  the  plaintiff's  business, 
or  business  of  which  the  plaintiff  had  a  special  patron- 
age, and  (3)  that  the  public  were  deceived  thereby.^  For 
example :  The  defendant  sells  a  medicine  labelled  '  Dr 
Johnson's  ointment ; '  the  label  being  one  which  the  plain- 
tiff had  previously  used,  and  was  still  using  when  the 
defendant  began  to  make  use  of  the  same.  The  plaintiff 
cannot  recover  without  showing  that  the  defendant  has 
used  the  label  for  the  purpose  of  indicating  that  the  medi- 
cine has  been  prepai-ed  by  the  plaintiff.^  Again :  The 
plaintiff  Sykes  is  a  maker  of  powder-flasks  and  shot  belts, 
upon  which  he  has  placed  the  words  '  Sykes  Patent.' 
There  is  no  valid  patent  upon  them,  in  fact,  as  has  been 
decided  by  the  courts ;  but  the  maker  has  continued  to 
use  the  words  upon  the  goods  to  designate  them  as  of  his 
own  making.  The  defendant,  whose  name  is  also  Sykes, 
makes  similar  goods,  and  puts  upon  them  the  same  words, 
with  a  stamp  closely  resembling  that  of  the  plaintiff,  so 
as  to  sell  the  goods  'as  and  for 'the  plaintiff's  goods. 
This  is  a  breach  of  duty.^  Again :  The  defendant  has 
the  words  '  Revere  House '  painted  upon  coaches  which 
he  uses  to  carry  passengers  from  the  railroad  station  to  a 


1  Sykes  v.  Sykes,  3  B.  &  C.  541 ;  s.  c.  L.  C.  Torts,  66  ;  Eodgers  ;;. 
Nowill,  5  C.  B.  109  ;  Morison  v.  Salmon,  2  Man.  &  G.  385  ;  Craw- 
shay  V.  Thompson,  4  Man.  &  G.  357,  379,  383.  See  1  Bigelow,  Fraud, 
560,  565.  In  a  proceeding  for  injunction  it  is  not  necessary,  in  ordinary 
cases,  to  prove  the  defendant's  knowledge  or  intent  to  deceive.  Simple 
priority  of  use  of  the  mark  is  enough.  See  Millington  v.  Fox,  3  Mylne 
&  C.  338  ;  Singer  Machine  Co.  v.  Wilson,  3  App.  Gas.  376.  The  sub- 
ject of  trademarks  is  being  gradually  assimilated  to  the  law  of  prop- 
erty, and  actions  for  deceit  are  apparently  becoming  infrequent  under 
the  influence  of  a  better  right. 

2  Singleton  v.  Bolton,  3  Doug.  293.  This  supposes,  of  course,  that 
the  medicine  was  not  patented. 

^  Sykes  v.  Sykes,  supra. 


Chap.  I.  §  7.]  DECEIT.  63 

hotel  of  the  name.  By  contract  with  the  proprietor  of 
the  hotel,  the  plaintiff  has  the  exclusive  right  to  repre- 
sent that  he  has  the  patronage  of  the  hotel.  The  defend- 
ant commits  no  breach  of  duty  to  the  plaintiff,  unless  he 
so  makes  use  of  the  designation  upon  his  coaches  as  to 
indicate  that  the  proprietor  of  the  hotel  has  granted  to 
him  such  a  right  of  patronage.'^ 

1  Marsh  v.  BiUings,  7  Cush.  322  ;  s.  c.  L.  C.  Torts,  59. 


CHAPTER  II. 

MALICIOUS  PROSECUTION. 
§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  institute  against  liim  a  prosecution,  with  malice  and 
witliout  reasonable  and  probable  cause,  for  an  offence 
falsely  charged  to  have  been  committed  by  B. 

1.  "When  a  termination  of  prosecution  is  referred  to 
without  further  explanation,  such  a  termination  is  meant 
as  will,  in  connection  with  the  other  elements  of  the 
action,  permit  an  action  for  malicious  prosecution. 

2.  The  word  '  prosecution  '  includes  such  civil  actions 
as  may  be  the  subject  of  a  suit  for  malicious  prosecution. 

3.  The  term  '  probable  cause  '  is  used  for  brevity,  in 
this  chapter  for  '  reasonable  and  probable  cause.' ^ 

la  order  to  maintain  an  action  for  a  malicious  prosecu- 
tion, three  things  are  necessary,  and  })ossibly  four,  to  wit, 

(1)  the  prosecution  complained  of  must  have  terminated 
before  the  action  for  redress  on  account  of  it  is  begun  ; 

(2)  it  must  hare  been  instituted  without  probable  cause  ; 

(3)  it  must  have  been  instituted  maliciously  ;  (4)  actual 
damage  must  be  proved  in  cases  in  which  the  charge  in 
itself  would  not  be  actionable,  assuming  that  an  action 

*  Tliere  may  be  some  slight  difference  in  meaning  in  special  cases, 
between  '  reasonable  *  and  '  probable  '  cause.  See  the  language  of  Tin- 
dal,  C.  J.  in  Broad  v.  Ham,  5  Bing.  N.  C.  722,  725,  quoted  in  Lister 
V.  Ferryman,  L.  R.  4  H.  L.  521,  530,  540.  Ordinarily,  however,  the 
words  are  synonymous. 


CiiAP.  11.  §  2.]        MALICIOUS  PROSECUTION.  55 

for  malicious  prosecution  is  maintainable  in  such  a  case. 
And  it  devolves  upon  the  plaintiff  to  prove  all  these  facts. 
Actions  for  malicious  prosecution  are  brought,  for  the 
greater  part,  only  for  wrongful  criminal  prosecutions.  For 
a  civil  suit  instituted  of  malice  and  without  probable  cause 
there  is  no  redress,*  it  seems,  except  in  a  few  cases  ;  ^  and 
these  appear,  in  the  main,  to  be  cases  of  actions  invol- 
A'ing  charges  of  '  scandal  to  reputation  or  the  possible  loss 
of  liberty,'  ^  such  as  '  proceedings  in  bankruptcy  against  a 
trader,  or  the  analogous  process  of  a  petition  to  wind  up 
a  company,'^  and  cases  in  which  property  has  been 
attached  maliciously  and  without  probable  cause,  but  pro- 
fessedly under  attachment  laws,  or  has  been  thus  taken  in 
replevin.^  But  where  there  has  been  a  wrongful  arrest, 
there  is  ground  for  a  suit  for  false  imprisonment,  though 
there  may  be  none  for  malicious  prosecution.^ 

§  2.     Of  the  Termination  of  the  Prosecution. 

The  action  for  a  malicious  prosecution  is  given  for  tlie 
preferring  in  court  of  a  Jalse  charge,  maliciously  and 
without  proper  grounds.     And,  as  it  cannot  be  known 

1  Tlie  rule  in  England  is  very  clear.  '  In  the  present  da}^,  and  ac- 
cording to  our  present  law,  the  bringing  of  an  ordinaiy  action,  how- 
ever maliciously,  and  however  great  the  want  of  reasonable  and  probable 
cause,  will  not  support  a  subse(|uent  action  for  malicious  prosecution.' 
Quartz  Hill  Mining  Co.  v.  Eyre,  11  Q.  B.  Div.  674,  690,  Bowen,  L.  J. 
But  there  are  some  exceptions,  as  in  cases  involving  false  imputations 
touching  business  reputation.  See  id.  p.  691.  Actions  for  malicious 
civil  suits  are  more  common  in  the  United  States.  See  Cooley,  Torts, 
217-220,  2d  ed. 

2  See  however  Closson  v.  Staples,  42  Vt.  209.  Further  see  Bicknell 
V.  Dorion,  16  Pick.  478,  488-490  ;  Cardival  v.  Smith,  109  Mass.  158. 

»  11  Q.  B.  Div.  691,  Bowen,  L.  I.  ;  Pollock,  Torts,  279,  2d  ed. 

4  Pollock,  279  ;  11  Q.  B.  Div.  691. 

5  Fortman  v.  Rottier,  8  Oliio  St.  548.  See  O'Brien  v.  Barry,  106 
Mass.  300  ;  Johnson  v.  King,  64  Texas,  226.  '*  Chapter  vii. 


66  LAW  OF  TORTS.  [Pakt  I. 

by  satisfactory  evidence  whether  the  charge  is  true  or 
false  before  the  verdict  aad  judgment  of  the  court  trying 
the  cause,  it  is  deemed  necessary  for  tire  defendant  to 
await  tlie  termination  of  the  proceeding  before  instituting 
an  action  for  mahcious  prosecution.  Or,  as  the  reason 
has  more  commonly  been  stated,  if  the  suit  for  the  alleged 
malicious  prosecution  should  be  permitted  before  the 
prosecution  itself  is  terminated,  inconsistent  judgments 
might  be  rendered,  —  a  judgment  in  favor  of  the  plaintiff 
in  the  action  for  the  prosecution  and  a  judgment  against 
him  in  that  prosecution  ;  ^  and  it  is  often  said  that  judg- 
ment against  the  party  prosecuted  would  show,  and 
that  conclusively,  that  there  was  probable  cause  for  the 
prosecution.^ 

'  It  will  be  seen  in  the  next  section  (relating  to  probable 
cause)  that  this  is  an  erroneous  view  of  the  effect  of  the 
judgment.  But  since  conviction  would  show  that  the  charge 
was  not  false,  it  would  be  fatal  to  any  action  for  malicious 
prosecution.  Tliis  is  true  even  though  the  prosecution  take 
jilace  in  a  proceeding  from  which  there  is  no  appeal.  Con- 
viction in  such  a  case  is  equally  fatal  with  a  conviction  in  a 
tribunal  from  the  judgment  of  which  the  defendant  has  a 
riglitof  appeal ;  since  to  allow  the  action  for  malicious  pros- 
ecution would  be  (so  it  is  deemed)  virtually  to  grant  an  ap- 
peal ;  a  thing  contrary  to  law  in  the  particular  case.  For 
example  :  The  defendant  procures  the  plaintiff  to  be  ar- 
rested (falsely,  maliciously,  and  without  probable  cause, 
as  the  latter  alleges)   and  tried  before  a  justice  of  the 

^  Fishei"  V.  Bristow,  1  Doug.  215. 

2  Parker  v.  Farley,  10  Ciish.  279,  282  ;  Castriqne  v.  Belirens,  3  El. 
&  E.  709.  See  Besebe  v.  Matthews,  L.  E.  2  C.  P.  684  ;  1  Smith's 
Leading  Cases,  258,  6th  ed.  But  an  action  for  malicious  prosecution 
against  the  present  plaintiff,  by  proceedings  against  him  in  bankruptcy, 
may  be  maintained  notwithstaTiding  an  adjudication  against  him,  if  this 
has  been  set  aside.     Metropolitan  Bank  v.  Pooley,  10  App.  Cas.  210. 


Chap.  II.  §  2.]      MxVLICIOUS  PROSECUTION.  57 

peace  on  a  criminal  complaint  of  assault  and  battery. 
The  plaintiff  (then  defendant)  is  convicted,  and  no  appeal 
is  allowed  by  law.  The  defendant  is  not  liable  for  mali- 
cious prosecution.^ 

It  is  often  said  that  the  plaintiff  must  have  been 
acquitted  of  the  charge  preferred,  to  enable  him  to  sue 
for  malicious  prosecution.  But  this,  though  a  clear  rule 
of  law  to  a  certain  extent,  is  by  no  means  universally 
true.^  An  acquittal  w^ould,  indeed,  be  a  bar  to  another 
prosecution  for  the  same  cause  ;  while  anything  short  of 
an  acquittal  in  fact  or  in  law  would  leave  the  accused 
still  liable  to  trial./  Nevertheless,  there  are  several  classes 
of  cases  in  regard  to  which  it  is  not  necessary  that  the 
proceedings  in  the  prosecution  in  question  should  have  gone 
the  length  of  an  acquittal.      These  will  now  be  shown. 

It  is  not  necessary,  it  seems,  to  the  termiuation  of  a 
civil  suit,  such  as  will  permit  an  action  for  malicious  pros- 
ecution, that  the  suit  should  have  gone  to  actual  judg- 
ment, or  even  to  a  verdict  by  the  jury.  A  civil  suit  is 
entirely  within  the  control  of  the  plaintiff,  and  he  may 
withdraw  and  terminate  it  at  any  stage  ;  and,  should  he 
take  such  a  step,  the  suit  is  terminated.  For  example  : 
The  defendant  (in  the  suit  for  malicious  prosecution) 
writes  in  the  docket  book,  opposite  the  entry  of  the  case 
against  the  plaintiff,  '  Suit  withdrawn.'  This  is  a  suffi- 
cient termination  of  the  cause  for  the  purposes  of  the  now 
plaintiff.^ 

It  is  not  necessary,  indeed,  that  the  party  should  make 
a  formal  entry  of  the  withdrawal  or  dismissal  of  the  suit, 
in  order  (without  a  judgment  or  verdict)  to  terminate  it 

1  Besebe  v.  Matthews,  L.  R.  2  C.  P.  684. 

2  Briggs  V.  Burton,  44  Vt.  124,  143  ;  Graves  v.  Dawson^  130  Mass. 
78,  infra,  p.  59. 

8  Arundell  v.  White,  14  East,  216. 


58  LAW   OF   TORTS.  [Pakt  I. 

sufficiently  for  the  purposes  of  au  action  l)y  the  opposite 
party.  Any  act,  or  omission  to  act,  which  is  tantamount 
to  a  discontinuance  of  the  proceeding  has  the  same  effect. 
For  example  :  The  defendant,  having  procured  the  arrest 
of  the  plaintiff  in  a  civil  cause,  fails  to  enter  and  prose- 
cute his  suit.     This  is  a  termination  of  the  proceeding.^ 

If,  however,  the  (civil)  prosecution  went  to  judgment, 
the  judgment  must  have  been  rendered  in  favor  of  the  de- 
fendant therein,  in  order  to  enable  him  to  sue  for  malicious 
prosecution.  Judgment  against  the  defendant  would  con- 
clusively establish  the  plaintiff's  right  of  action  ;  ^  it  could 
not,  therefore,  be  treated  as  a  false  prosecution  ^  though 
it  might  have  been  attended  with  malice,  —  unless,  indeed, 
it  was  concocted  in  fraud.* 

In  a  criminal  trial  the  situation  is,  indeed,  different. 
Such  a  proceeding  is  instituted  by  the  public,  and,  when 
by  indictment,  is  under  the  control  of  the  attorney- 
general,  or  other  prosecuting  officer ;  it  is  never  uuder 
the  coiitrol  of  the  prosecutor.  He  has  no  authority 
over  it ;  and,  this  being  the  case,  he  cannot,  in  principle, 
be  bound  by  the  action  of  the  prosecuting  officer.  Should 
such  officer,  therefore,  enter  a  dismissal  of  the  suit  before 
the  defendant,  having  been  duly  indicted,  has  been  put 
in  jeopardy,  this  act,  it  seems,  gives  no  right  to  the  pris- 
oner against  the  prosecutor.  The  course  of  proceeding 
was  not  arrested  by  the  prosecutor,  and  he  has  a  right  to 
insist  that  the  law  shall  take  its  regular  course,  and  place 
the  prisoner  in  jeopardy,  before  he  shall  have  the  power 
to  seek  redress.     For  example  :  The  defendant  procures 

1  Cardival  v.  Smith,  109  Mass.  158. 

2  O'Brien  i^.  Barry,  106  Mass.  300,  304. 

3  Id.  Or,  as  the  case  is  sometimes  put,  judgment  for  the  plaintiff 
would  show  that  he  had  probable  cause  lor  the  prosecution,  a  point  to 
be  considered  hereafter. 

*  Burt  V.  Place,  4  Wend.  591  ;  Payson  v.  Caswell,  22  Maine,  212. 


Chap.  II.  §  2.]      MALICIOUS  PROSECUTION.  59 

the  plaintiff  to  be  indicted  for  arson.  The  prosecuting 
officer,  failing  to  obtain  evidence,  enters  a  '  nolle  prosequi ' 
before  the  jury  is  sworn.  The  prosecution  is  not  termi- 
nated in  favor  of  the  prisoner.^ 

If,  however,  the  prosecution  was  arrested  by  the  grand 
jury's  finding  no  indictment  upon  the  evidence,  and  the 
consequent  discharge  of  the  prisoner,  this  is,  it  seems,  an 
end  of  the  prosecution,  such  as  will  enable  him  (other  ele- 
ments present)  to  bring  the  action  under  consideration. - 
And  the  same  is  true  when  the  prosecution  is  begun  by 
complaint  before  a  magistrate  who  has  jurisdiction  only 
to  bind  over  or  discharge  the  prisoner.  The  magistrate's 
entry  that  the  prisoner  is  discharged  entitles  him,  so  far, 
to  bring  an  action.  And  this  is  true,  though  the  prose- 
cutor withdraw  his  prosecution.  For  example  :  The  de- 
fendant prefers  against  the  plaintiff  a  charge  of  forgery 
before  a  justice  of  the  peace,  who  has  authority  only  to 
bind  over  or  discharge  the  prisoner.  The  justice's  min- 
utes contain  the  following  entry :  '  After  full  hearing  in 
the  case,  the  complainant  withdrew  his  prosecution,  and 
it  was  thereupon  ordered  '  that  the  plaintiff  be  discharged. 
An  action  for  malicious  prosecution  is  now  proper.^ 

In  none  of  the  foregoing  classes  of  cases  has  there  been 
an  acquittal  of  the  party  prosecuted,  or  anything  tanta- 
mount in  law  to  an  acquittal.  To  be  acquitted  in  a  pros- 
ecution for  crime  (the  only  case  calling  for  remark),  the 

1  Bacon  v.  Towne,  4  Cush.  217.  It  has  sometimes  been  said  that 
the  accused  cannot  sue  in  any  case  in  which  a  '  nolle  prosequi '  has  been 
entered,  — that  he  must  show  a  verdict  of  acquittal.  Parker  v.  Farley, 
10  Cush.  279  ;  Brown  v.  Lakeman,  12  Cush.  482  ;  Cardival  v.  Smith, 
109  Mass.  158.  But  that  doctrine  has  been  overturned  in  the  State 
in  which  it  was  laid  down.  Graves  v.  Dawson,  130  Mass.  78  ;  s.  c. 
133  Mass,  419.  See  also  Driggs  v.  Burton,  44  Vt.  124,  143.  Further 
as  to  '  nolle  prosequi '  see  Commonwealth  v.  Tuck,  20  Pick.  3.o6,  365. 

2  See  Byne  v.  Moore,  5  Taunt.  187  ;  s.  c.  L.  C.  Torts,  181. 

3  Sayles  v.  Briggs,  4  Met.  421. 


60  LAW  OF  TORTS.  [Part  I. 

accused  must  have  been  put  in  jeopardy ;  but  a  state  of 
jeopardy  is  not  reached  until  the  swearing  of  the  petit 
jury.  Hence  if  acquittal  were  necessary,  an  action  for 
malicious  prosecution  could  not  be  instituted  upon  the 
failure  of  the  grand  jury  to  find  an  indictment,  or  upon 
the  discharge  of  a  magistrate  who  has  no  power  to  con- 
vict. In  neither  ease  has  the  prisoner  been  in  jeopardy. 
The  fact  appears  to  be  that,  notwithstanding  the  language 
of  some  of  the  judges,  a  termination  of  the  proceedings  with 
an  acquittal,  actual  or  virtual,  is  necessary  only  in  case  of 
an  indictment  or  information  against  the  prisoner.  In 
other  cases,  it  is  only  necessary  that  the  prosecution  should 
be  dismissed.^ 

By  way  of  summary,  the  various  rules  of  law  may  be 
thus  stated  :  A  civil  suit  is  terminated  (1)  when  the  plain- 
tiff has  withdrawn,  or  otherwise  discontinued,  his  action  ; 
or  (2)  when  judgment  has  been  rendered  in  favor  of  the 

1  The  rule  requiring  an  acquittal  of  the  party  prosecuted  is  founded, 
it  seems,  upon  an  early  English  statute  entitled  '  Malicious  Appeals.' 
Westm.  2,  c.  12  ( 13  Edw.  1).  By  this  statute  it  was  ordained  that  when 
any  person  maliciously 'appealed  [that  is,  accused  and  prosecuted]  of 
felony  surmised  upon  him,  doth  acquit  himself  in  the  King's  Court  in 
due  manner,'  &c.,  the  appellor  shall  be  imprisoned  and  be  liable  in 
damages  to  the  injured  party.  A  few  years  later  statutes  were  passed 
against  conspiracies  to  indict  persons  maliciously.  L.  C  Torts,  190. 
Between  these  statutes  and  the  statute  first  mentioned,  and  taking  its 
shape  from  them,  the  action  for  malicious  prosecution  arose.  Had  not 
the  statutes  been  lost  sight  of  in  the  modern  authorities,  the  explana- 
tion of  the  subject  would  have  been  more  satisfactory  than  it  has  some- 
times been.  The  various  statutes  applied  to  cases  of  prosecutions  for 
felony  alone  ;  and  in  such  cases  only,  it  seems,  is  an  acquittal  neces- 
sary. All  other  cases  stand,  so  far  as  the  statutes  affect  the  law,  as  at 
common  law.  Prosecutions  for  misdemeanors,  prosecutions  before  in- 
ferior courts,  and  civil  prosecutions  are  left  to  the  wisdom  of  the  judges 
(except  those  falling  within  the  statute  of  Malicious  Distresses  in  Courts 
Baron,  which  required  proof  only  of  malice  and  a  false  complaint. 
L.  C.  Torts,  192). 


Chap  II.  §  3.]      MALICIOUS  PROSECUTION.  61 

defendiiut.  A  criminal  suit  is  terminated  (1)  wlicn  the 
prosecution,  if  brought  before  a  magistrate,  has  been  dis- 
missed, or  (2)  when,  if  preferred  before  the  grand  jury, 
that  body  has  found  no  indictment ;  or  (3)  when,  an  in- 
dictment having  been  found,  and  the  prisoner  having  been 
put  in  jeopardy,  a  verdict  acquitting  the  prisoner  has 
been  rendered.  Perhaps  the  prisoner  should  also  have 
been  discharged ;  but  he  is  entitled  to  a  discharge  in  all 
these  cases. 

§  3.     Of  the  Want  of  Probable  Cause. 

Supposing  the  plaintiff  to  have,  begun  his  action  after 
the  termination  of  the  prosecution,  it  then  devolves  upon 
him  further  to  establish  the  defendant's  breach  of  duty  by 
showing  that  he  instituted  the  prosecution  without  proba- 
ble cause.  ^  And  this  appears  to  mean  that  he  ought  to 
show  that  no  such  state  of  facts  or  circumstances  was 
known  as  would  induce  one  of  ordinary  intelligence  and 
caution  to  believe  the  charge  preferred  to  be  true.^  Or, 
conversely,  probable  cause  for  preferring  a  charge  of 
crime  is  shown  by  '  facts  which  would  create  a  reasonable 
suspicion  in  the  mind  of  a  reasonable  man.'  ^ 

To  act,  therefore,  on  very  slight  circumstances  of  sus- 
picion, such  as  a  man  of  caution  would  deem  of  little 
weight,  is  to  act  witliout  probable  cause.  For  example : 
The  defendant  procures  the  arrest  of  the  plaintiff  upon  a 
charge  of  being  implicated  in  the  commission  of  a  robbery, 
which  in  fact  has  been  committed  by  a  third  person  alone, 
who  absconds.     The  plaintiff,  who   has   been  a  fellow- 

1  Turner  v.  Ambler,  10  Q.  B.  2.52. 

2  Driggs  V.  Burton,  44  Vt.  124  ;  Boyd  v.  Cross,  35  Md.  194. 

3  Broughton  v.  Jackson,  18  Q.  B.  378  ;  Pauton  v.  Williams,  2Q.  B. 
169,  Ex.  Ch. ;  Boyd  v.  Cross,  supia  ;  Ramsey  v.  Arrott,  64  Texas, 
320. 


t>2  LAW   OF   TORTS.  [Part  L 

workman  with  the  criminal,  has  been  heard  to  say  that  he 
(the  plaintiff)  had  been  told,  a  few  hours  before  the  rob- 
bery, that  the  robber  had  absconded,  and  that  he  had  told 
the  plaintiff  that  he  intended  to  go  to  Australia.  Tire 
robber  has  also  been  seen,  early  in  the  morning  after  the 
robbery,  coming  from  a  public  Qntry  leading  to  the  back 
door  of  the  plaintiff's  house.  The  defendant  hus  no 
probable  cause  for  the  arrest.^ 

But  though  the  prosecutor  be  in  a  situation  to  show 
that  he  had  probable  cause,  so  far  as  regards  the  strength 
of  his  information,  still  if  he  did  not  believe  the  facts  and 
rely  upon  them  in  procuring  the  arrest,  he  has  committed 
a  breach  of  duty  towards  the  person  arrested.  For  ex- 
ample :  The  defendant  goes  before  a  magistrate  and  pre- 
fers against  the  plaintiff  the  charge  of  larceny,  for  which 
there  was  reasonable  ground  in  the  facts  within  the  de- 
fendant's cognizance.  The  defendant,  however,  does  not 
believe  the  plaintiff  guilty,  but  prefers  the  charge  in  order 
to  coerce  the  plaintiff  to  pay  a  debt  which  he  owes  to  the 
defendant.  The  defendant  has  acted  without  probable 
cause. ^ 

The  question  of  probable  cause  is  to  be  decided  by  the 
circumstances  existing  at  the  time  of  the  arrest,  and  not 
by  the  turn  of  subsequent  events  ;  ^  such  at  all  events  is 
the  general  rule.  If  the  defendant  had  at  that  time  such 
grounds  for  supposing  the  plaintiff  guilty  of  the  crime 
charged  as  would  satisfy  a  cautious  man,  he  violates  no 

1  Busst  V.  Gibbons,  30  Law  J.  Ex.  75.  Conip.  Lister  v.  Ferryman, 
L.  R.  4  H.  L.  521,  as  to  hearsay. 

2  Broad  v.  Ham,  5  Ring.  N.  C.  722.  Had  the  defendant  believed 
the  charge,  would  it  have  been  material  that  he  procured  the  arrest 
mainly  for  the  purpose  of  getting  his  pay  ? 

3  Swain  v.  Stafford,  4  Ired.  392  and  398  ;  Delegal  v.  Highley,  3 
Bing.  N.  C.  950.  But  see  Adams  v.  Lisber,  3  Blackf.  241  ;  Hickman 
V.  Griffin,  6  Mo.  37-     See  L.  C.  Torts,  198-200. 


CiiAP.  II.  §  3]        MALICIOUS  PROSECUTION.  63 

duty  to  the  plaintiff  in  procuring  his  arrest,  though  such 
grounds  be  immediately  and  satisfactorily  explained  away, 
or  the  truth  discovered  by  the  prosecutor  himself.  For 
example :  The  defendant  procures  the  plaintiff  to  be 
arrested  for  the  larceny  of  certain  ribbons,  on  reasonable 
grounds  of  suspicion.  He  afterwards  finds  the  ribbons  in 
liis  own  .possession.     He  is  not  liable.^ 

On  the  other  hand,  in  accordance  with  the  same  princi- 
ple, if  the  prosecutor  was  not  possessed  of  facts  justify- 
ing a  belief  that  the  accused  was  guilty  of  the  charge,  it 
matters  not  that  subsequent  events  (short  of  a  judgment 
of  conviction,  as  to  which  presently)  show  that  there  ex- 
isted, in  fact,  though  not  to  the  prosecutor's  knowledge, 
circumstances  sufficient  to  have  justified  an  arrest  by  any 
one  cognizant  of  them.  He  has  violated  his  duty  in  pro- 
curing the  arrest.  For  example  :  The  defendant  to  an 
action  for  malicious  prosecution  shows  facts  sufficient  to 
constitute  probable  cause,  but  does  not  show  that  he  was 
cognizant  of  such  facts  when  he  procured  the  plaintiff's 
arrest.     The  defence  is  not  good.^ 

It  has,  however,  been  declared  that  conviction  is  con- 
clusive evidence  of  the  existence  of  probable  cause ,  ^  and 
this  though  the  verdict  is  afterward  set  aside  and,  upon  a 
new  trial,  an  acquittal  follows.''  But  this,  it  will  be  seen, 
is  inconsistent  with  the  rule  that  the  question  of  probable 
cause  is  to  be  determined  by  the  state  of  facts  within  the 
prosecutor's  knowledge  (supposing  him  to  have  acted 
bona  fide  upon  such  facts)  at  the  time  of  the  arrest.  Con- 
viction does  not,  in  point  of  fact,  prove  that  the  prose- 

1  Swain  v.  Stafford,  4  Ired.  392  and  398. 

2  Delegal  v.  Highley,  3  Bing.  N.  C.  950. 

s  Whitney  v.  Peckham,  15  Mass.  243  (by  a  trial  magistrate) ;  Par- 
ker V.  Farley,  10  Cush.  279,  282.  See  ante,  p.  56.  Contra,  Burt  v. 
Place,  4  Wend.  591 ;  Metropolitan  Bank  v.  Pooley,  10  App.  Cas.  210, 
ante,  p.  56,  note. 

*  Whitney  v,  Peckham,  supra.     See  also  Parker  v.  Farley,  supra. 


64  LAW  OF  TORTS.  [Part  I. 

cutor  at  the  time  had  reasonable  grounds  to  suspect  the 
guilt  of  the  prisoner ;  such  grounds,  that  is,  as  would 
have  induced  a  cautious  man  to  arrest  the  suspected  per- 
son. It  would,  it  seems,  be  more  accurate  to  say  that  the 
old  Statute  of  Malicious  Appeals,  which  in  reality  lies  at 
the  foundation  of  the  law  concerning  criminal  prosecu- 
tions, by  plain  implication  exempted  the  prosecutor  (of 
felony)  from  liability  in  case  of  the  conviction  of  the 
prisoner.^ 

There  are  other  seeming  anomalies  relating  to  this 
phase  of  probable  cause ;  one  of  them  is  found  in  the 
effect  accorded  by  some  courts  to  the  action  of  the  grand 
jury,  or  to  that  of  a  magistrate  who  has  power  only  to 
bind  over  the  accused  for  trial.  That  action  is  said  to 
furnish  prima  facie  (i.e.  sufficient)  evidence  in  regard 
to  probable  cause,  in  a  suit  for  malicious  prosecution. 
For  example :  The  now  defendant  prosecutes  the  now 
plaintiff  before  the  grand  jury,  on  a  charge  of  larceny, 
and  the  grand  jury  throws  out  the  bill.  This  is  deemed 
prima  facie  evidence  of  want  of  probable  cause  in  the  pres- 
ent suit.'^      Again  :  A  magistrate  binds  over  a  person  ac- 

1  Ante,  p.  60,  note.  If  the  forgotten  statute  lie  followed,  this  will 
be  true  only  in  cases  of  conviction  of  what  was  felony  at  common  law. 
In  other  cases  the  conviction  could  not,  by  the  statute,  bar  an  action  ; 
nor  could  it  bar  an  action  for  malicious  prosecution  on  grounds  of  es- 
toppel, because  the  parties  to  the  two  actions  are  different  ;  the  crimi- 
nal suit  being  between  the  State  and  the  prisoner.  The  judgment 
could  not,  properly  taken,  be  more  than  prima  facie  evidence  of  proba- 
ble cause,  even  if,  of  itself  alone,  it  could  be  considered  as  amounting 
to  any  evidence  on  that  point.  The  question  before  the  petit  jury,  as 
has  elsewhere  been  observed  (post,  p.  66,  note),  is,  not  whether  there  was 
probable  cause  for  the  arrest,  within  the  knowledge  of  the  prosecutor, 
but  whether  the  prisoner  is  guilty.  However,  the  language  of  many 
of  the  decisions  is  that  the  conviction  is  conclusive  of  probable  cause  ; 
and  the  author  at  one  time  considered  this  to  be  correct.  L.  C.  Torts, 
196,  197. 

2  See  Nicholson  v.   Coghill,  6  Dowl    &  R.  12,   14,   Holroyd,  J.; 


Chap.  n.  §3.]        MALICIOUS  PROSECUTION.  65 

cused  of  crime,  who  is  afterwards  tried  and  acquitted. 
This  is  deemed  prima  facie  evidence  of  probable  cause  in 
an  action  against  the  prosecutor  for  malicious  prosecution.^ 

Other  courts  have  taken  a  different  view  of  the  matter, 
denying  that  the  action  of  the  grand  jury  or  of  the  magis- 
trate is  sufficient  evidence  in  the  action  for  malicious 
prosecution.  How  can  it  be,  they  say  in  effect,  that  what 
is  no  evidence  at  all  before  the  grand  jury  or  the  magis- 
trate in  the  same  case  can  be  prima  facie  evidence  before 
a  petit  jury  in  a  different  case?"  To  this  reasoning  it 
might  be  added  that  the  grand  jury  or  the  magistrate  does 
not  consider  what  prompted  the  prosecutor,  but  whether 
there  is  now  sufficient  evidence  to  justify  holding  the 
accused  further  for  trial.  But  the  contrary  doctrine, 
after  all,  is  only  a  doubtful  application  of  the  rule  of 
the  relevancy  of  a  later  fact  to  prove  an  earlier,  and 
hence  does  not  really  conflict  with  the  true  meaning  of 
probable  cause. 

Further,  it  has  been  seen'  that  in  certain  peculiar  cases 
an  action  for  a  malicious  civil  suit  may  be  brought.  Now 
while  it  is  held  that  the  mere  omission  to  appear  and 
prosecute  an  action,  whereby  the  defendant  obtains  a 
judgment  of  nonsuit,  is  no  evidence  of  want  of  probable 
cause,*  it  is  deemed  that  a  voluntary  discontinuance,  being 
a  positive  act,^  may  show  prima  facie  evidence  of  the 
same.  For  example  (taking  a  case  from  the  old  law 
which  permitted  an  arrest  in  an  ordinary  civil  suit)  :  The 

Broad  v.  Ham,  5  Bing.  N.  C.  722,  727,  Coltman,  J.  ;  Bostick  v. 
Euthei'ford,  4  Hawks,  83 ;  Williams  v.  Norwood,  2  Yerg.  329. 

1  Bacon  v.  Towne,  4  Cush.  217  ;  Graham  v.  Noble,  13  Serg.  &  R. 
270  ;  Burt  v.  Place,  4  Wend.  591.  See  Reynolds  v.  Kennedy,  1  Wils. 
232 ;  Sutton  v.  Johnstone,  1  T.  K.  493,  505,  506. 

2  Israel  v.  Brooks,  23  111.  575. 
8  Ante,  p.  55. 

*  Sinclair  v.  Eldred,  4  Taunt.  9  ;  Webb  v.  Hill,  3  Car.  &  P.  485. 
^  Sed  qu.  of  the  relevancy  of  such  fact. 

5 


66  LAW   OF   TORTS.  [Part  I. 

now  defendant  procures  the  now  plaintiff  to  be  arrested 
and  held  to  bail  in  an  action  on  contract.  The  case 
comes  on  for  trial  very  sliortly  afterwards,  and  the  plain- 
tiff discontinues  his  suit.  This  is  deemed  prima  facie 
evidence  of  want  of  probable  cause.' 

Again,  the  mere  abandonment  of  the  prosecution  by 
the  prosecutor,  and  the  acquittal  of  the  prisoner,  are 
no  evidence  of  a  want  of  probable  cause. ^  8uch  facts  in 
themselves  show  nothing  except  that  the  prosecution  has 
failed.  It  may  still  have  been  undertaken  upon  reasona- 
ble grounds  of  suspicion.^  But  it  is  held  that  the  circum- 
stances of  the  abandonment  may  be  such  as  to  indicate 
prima  facie  a  want  of  probable  cause.  For  example  : 
The  defendant  presents  two  bills  for  perjury  against  the 
plaintiff,  but  does  not  himself  appear  before  the  grand 
jury,  and  the  bills  are  ignored.  He  presents  a  third  bill, 
and,  on  his  own  testimony,  the  grand  jury  return  a  true 
bill.  The  defendant  now  keeps  the  prosecution  sus- 
pended for  three  years,  when  the  plaintiff,  taking  down 
the  record  for  trial,  is  acquitted  ;  the  defendant  declin- 
ing to  appear  as  a  witness,  though  in  court  at  the  time 
and  called  upon  to  testify.  These  facts  indicate  the 
absence  of  probable  cause.* 

If  the  prosecutor  takes  the  advice  of  a  practising  law- 
yer upon  the  question  whether  the  facts  within  his  know- 
ledge are  such  as  to  justify  a  complaint,  and  acts  bona 
fide  upon  the  advice  given,  he  will    be  protected  even 

1  Nicholson  v.  Coghill,  6  Dowl.  &  R.  12  ;  Webb  v.  Hill,  3  Car.  &  P. 
485. 

2  Willaiis  V.  Taylor,  6  Ring.  183  ;  Vanderbilt  v.  Mathis,  5  Duer, 
304  ;  s.  c.  L.  C.  Torts,  178  ;  Johnson  v.  Chambers,  10  Ired.  287. 

3  The  magistrate  or  grand  jury  decides  whether  there  is  reasonable 
ground  for  putting  the  prisoner  upon  trial ;  the  petit  jury  decides 
whether  the  prisoner  is  guilty 

*  Willans  v.  Taylor,  6  Bing.  183. 


Chap.  II.  §3.]      MALICIOUS  PROSECUTION.  67 

though  the  counsel  gave  erroneous  advice.^  That  is,  he 
will  be  protected,  though  he  might  not  have  been  in 
possession  of  facts  such  as  would  have  justified  a  prose- 
cution without  the  advice.  For  example :  The  defend- 
ant states  to  his  attorney  the  facts  in  his  possession 
concerning  a  crime  supposed  to  have  been  committed  by 
the  plaintiff.  The  attorney  advises  the  defendant  that 
he  can  safely  procure  the  plaintiff's  arrest.  The  defend- 
ant is  not  liable,  though  the  facts  presented  did  not 
in  law  constitute  probable  cause. ^ 

The  prosecutor  must,  however,  as  the  proposition 
itself  states,  act  bona  fide  upon  the  advice  given,  if  he 
rest  his  defence  upon  such  a  ground  alone.  For  exam- 
ple :  The  defendant  procures  the  arrest  of  the  plaintiff, 
having  first  taken  the  advice  of  legal  counsel  upon  the 
facts.  This  advice  is  erroneous,  and  it  is  not  acted  upon 
in  good  faith,  believing  it  to  be  correct ;  the  arrest  being 
procured  for  the  indirect  and  sinister  motive  of  compelling 
the  plaintiff  to  sanction  the  issuance  of  certain  illegal 
bonds.     The  defendant  is  liable.^ 

If,  after  taking  legal  advice  and  before  the  arrest,  new 
facts  come  to  the  knowledge  of  the  prosecutor,  he  cannot 
justify  the  arrest  as  made  on  advice,  unless  such  new 
facts  are  consistent  with  the  advice  which  has  been 
given.  If  they  should  be  of  a  contrary  nature,  cast- 
ing new  doubt  upon  the  party's  guilt,  the  prosecutor 
cannot  safely  proceed  to  procure  an  arrest  except  upon 
new  advice ;  unless  indeed  the  entire  chain  of  facts  in 
his  possession  shall  satisfy  the  court  that  there  existed 

1  Cooper  V.  Utterbach,  37  Md.  282  ;  Olmstead  v.  Partridge,  16 
Gray,  381  ;  Cole  v.  Curtis,  16  Minn.  182  ;  Ravenga  v.  Mackintosh,  2 
B.  &  C.  693 ;  Snow  v.  Allen,  1  Stark.  502. 

3  Snow  V.  Allen,  supra. 

8  Ravenga  v.  Mackintosh,  2  B.  &  C.  693.  See  Hewlett  v.  Cruchley, 
5  Taunt.  277,  283. 


68  LAW  OF  TORTS.  [Part  L 

a  reasonable  ground  for  his  action.  To  make  use  of  the 
advice  given,  when  the  new  facts  indicate  that  the 
accused  is  not  guilty,  would  not  be  to  act  upon  the  advice 
in  good  faith. ^ 

Again,  if  the  only  defence  be  that  the  prosecutor  acted 
upon  legal  advice,  a  breach  of  duty  may  still  be  made  out 
if  it  appear  that  the  prosecutor  untruly  stated  to  the 
counsel  the  facts  within  his  knowledge.  The  plaintiff's 
case,  so  far  as  it  rested  on  the  proof  of  want  of  probable 
cause,  would  be  established  by  showing  that  the  actual 
facts  known  to  the  prosecutor  (differing  from  those  on 
which  the  advice  was  obtained)  showed  that  he  had  no 
reasonable  ground  for  instituting  the  prosecution. 

The  result  is,  that  the  defence  of  advice  of  legal  coun- 
sel, to  establish  probable  cause,  must  not  be  resorted  to 
as  a  mere  cover  for  the  prosecution,  but  must  be  the 
result  of  an  honest  and  fair  purpose  ;  and  the  statement 
made  at  the  time  by  the  prosecutor  to  his  counsel  must  be 
full  and  true,  and  consistent  with  that  purpose.'^ 

This  defence  of  having  acted  upon  legal  advice  is,  it 
seems,  a  strict  one,  confined  to  the  case  of  advice 
obtained  from  lawyers  admitted  to  practise  in  the  courts. 
Such  persons  are  certified  to  be  competent  to  give  legal 
advice,  and  their  advice  when  properly  obtained  and 
acted  upon  is  conclusive  of  the  existence  of  probable 
cause.  But  if  the  prosecutor  act  upon  the  advice  of  a 
person  not  a  lawyer,  and  therefore  not  declared  competent 
to  give  legal  advice,  the  facts  must  be  shown  upon  which 
the  advice  was  obtained,  however  honestly  and  properly 
it  was  sought  and  acted  upon.  It  is  not  enough  that  the 
advice  was  given  by  an  officer  of  the  law,  professing 
familiarity  with  its  principles,  if  such  a  person  were  not 

1  See  Fitzjolin  v.  Mackinder,  9  C.  B.  n.  s.  505,  531,  Ex.  Ch.  Cock- 
"burn,  C.  J.  ;  Cole  v.  Curtis,  16  Minn.  182. 

2  Walter  v.  Sample,  25  Penn.  St.  275. 


Chap.  II.  §4.]       MALICIOUS  PROSECUTION.  69 

a  lawyer.  For  example :  The  defendant  procures  the 
arrest  of  the  plaintiff  upon  advice  of  a  justice  of  the  peace, 
with  whom  he  has  been  in  the  habit  of  advising  on 
legal  matters ;  but  the  justice  is  not  a  lawyer.  This  is 
not  evidence  of  probable  cause. ^ 

The  want  of  probable  cause  is  not  to  be  inferred  because 
of  mere  evidence  of  malice,  since  a  person  may  maliciously 
prosecute  another  whom  he  has  the  strongest  evidence 
against;  whom,  indeed,  he  may  have  caught  in  the  com- 
mission of  the  crime. ^  There  must  be  some  evidence 
indicating  that  the  prosecutor  instituted  the  suit  under 
circumstances  which  would  not  have  induced  a  cautious 

man  to  act. 

It  should  be  observed,  finally,  that  it  is  necessary  for 
the  plaintiff,  even  in  a  jury  case,  to  convince  the  judge  of 
the  want  of  probable  cause  upon  the  facts  proved.  The 
facts  material  to  the  question  of  probable  cause  must  be 
found  by  the  jury ;  but  the  judge  decides  whether  the 
facts  so  found  establish  probable  cause  or  want  of  it.' 

§  4.     Of  Malice. 

To  make  out  a  breach  of  duty  by  the  defendant,  the 
plaintiff  must  also  produce  evidence  such  as  will  indicate 
that  the  prosecution  was  instituted  with  malice  towards 
the  accused.*     Malice  is  not  to  be  inferred  because  of 

1  Beal  V.  Robeson,  8  Ired.  276. 

2  Turner  v.  Ambler,  10  Q.  B.  252,  257  ;  Boyd  v.  Cross,  35  Md.  194. 
8  Panton  v.  Williams,  2  Q.  B.  169,  Ex.  Ch.  ;  Lister  v.  Perryraan, 

L.  R.  4  H.  L.  521  ;  Abrath  v.  Northeastern  Ry.  Co.  11  App.  Cas.  247  ; 
Dietz  V.  Langfitt,  63  Penn.  St.  234 ;  Driggs  v.  Burton,  44  Vt.  124  ; 
Boyd  V.  Cross,  supra. 

*  Vanderbilt  v.  Mathis,  5  Duer,  304 ;  s.  c.  L.  C.  Torts,  178  ;  Pang- 
bum  V.  Bull,  1  Wend.  345  ;  Carson  v.  Edgeworth,  43  Mich.  241  ;  Dietz 
V.  Langfitt,  63  Penn.  St.  234. 


70  LAW  OF  TORTS.  [Part  I. 

mere  proof  of  a  want  of  probable  cause, ^  any  more  than 
want  of  probable  cause  is  to  be  inferred  because  of  mere 
proof  of  malice  ;  it  may  be  inferred  as  a.  fact  from  want 
of  probable  cause,  but  it  is  not  a  necessary  inference.^ 
A  man  may  institute  a  prosecution  against  another  with- 
out the  least  motive  of  malice  towards  him,  though  he  had 
no  sufficient  ground  for  doing  so.^ 

The  jury  must  be  allowed,  and  it  is  their  duty,  to  pass 
upon  the  question  of  malice  as  a  distinct  matter.  There 
is,  therefore,  no  such  thing  in  the  law  of  malicious  prose- 
cution as  implied  malice  or  malice  in  law."*  For  exam- 
ple :  Evidence  having  been  introduced  in  an  action  for  a 
malicious  prosecution,  which  showed  that  the  defendant 
had  instituted  the  prosecution  without  probable  cause,  the 
judge  instructs  the  jury  that  there  are  two  kinds  of  malice, 
malice  in  law  and  malice  in  fact,  and  that  in  the  present 
case  there  was  malice  in  law  because  the  prosecution  was 
wrongful,  being  without  probable  cause.  Tliis  is  errone- 
ous ;  the  existence  of  malice  is  a  question  for  the  jury.* 

It  is  not  necessary,  however,  notwithstanding  the  lan- 
guage of  some  of  the  old  decisions,®  to  prove  the  existence 
of  an  intense  hostility  and  rancor  ;  evidence  of  slight  hos- 
tility, or  of  the  existence  of  any  sinister  motive,  or  indi- 
rect motive  of  wrong,  is  sufficient.  For  example :  The 
defendant  is  shown  to  have  gone  out  of  his  way  in  a 
prosecution  of  the  plaintiff,  by  publishing  the  proceed- 
ings against  him.     This  is  evidence  of  malice.' 

1  Vanderbilt  v.  Mathis,  5  Duer,  304  ;  L.  C.  Torts,  178  ;  Griffin  v. 
Chubb,  7  Texas,  603,  617. 

2  Carson  v.  Edgeworth,  43  Mich.  241  ;  Dietz  v.  Langfitt,  63  Penn. 
St.  234. 

8  Griffin  V.  Chubb,  supra,  at  p.  616. 

*  Mitchell  V.  Jenkins,  5  B.  &  Ad.  588  ;  Carson  v.  Edgeworth,  supra. 

5  Mitchell  V.  Jenkins,  supra. 

6  Savil  V.  Roberts,  1  Salk.  13. 

■^  Chambers  v.  Robinson,  2  Strange,  691.     See  Stevens  v.  Midland 


Chap.  II.  §  5.]      MALICIOUS  PROSECUTION.  71 


§  5.     Of  Damage. 

If  the  charge  upon  which  the  prosecution  was  instituted 
was  such  as  (being  untrue)  would  have  constituted  action- 
able slander  had  it  not  been  preferred  in  court,  the  plain- 
tiff, upon  proof  of  the  termination  of  the  prosecution,  the 
want  of  probable  cause,  and  malice,  has  made  out  a  case, 
and  is  entitled  to  judgment.  It  is  not  necessary  for  him 
to  prove  that  he  has  sustained  any  pecuniary  damage. 
For  example  :  The  defendant  causes  the  plaintiff  to  be 
indicted  for  the  stealing  of  a  cow,  falsely,  without  proba- 
ble cause,  and  of  malice.  The  plaintiff'  is  entitled  to  re- 
cover without  producing  evidence  that  he  has  sustained 
any  actual  damage.^ 

But  it  has  been  decided  that  it  is  only  for  the  prosecu- 
tion of  a  charge  the  mere  verbal  imputation  of  which 
would  constitute  actional)le  slander  that  the  institution 
of  the  prosecution  can  be  actionable  without  damage.'^ 
For  example  :  The  defendant  falsely  prefers  against  the 
plaintiff'  a  simple  charge  of  assault  and  battery,  with- 
out cause  and  with  malice.  The  plaintiff  cannot  re- 
cover for  a  malicious  prosecution  without  proof  of  special 
damage. 

Ey.  Co.  10  Ex.  356,  that  by  the  term  'malice'  is  meant  any  indirect 
motive  of  wrong.  '  Any  motive  other  than  that  of  Kimply  instituting  a 
prosecution  for  the  purpose  of  brinsin^  a  person  to  justice  is  a  malicious 
motive.'  And  see  Abrath  v.  North  Eastern  Ey.  Co.  11  Q.  B.  Div.  440, 
450,  where  Bowen,  L.  J.  speaks  of  proceedings  'initiated  in  a  malicious 
spirit,  that  is,  from  an  indirect  and  improper  motive,  and  not  in  furtlier- 
ance  of  justice.'  See  also  Gabel  v.  Weisensee,  49  Texas,  131  ;  Culbert- 
son  V.  Cabeen,  29  Texas,  247. 

1  See  Frierson  v.  Hewitt,  2  Hill  (S.  Car. ),  499  ;  Byne  v.  Moore,  5 
Taunt.  187,  Mansfield,  C.  J.  ;  s.  c.  L.  C.  Torts,  181. 

^  Byne  v.  Moore,  supra.  See  Quartz  Hill  Mining  Co.  v.  Eyre,  21 
Q.  B.  Div.  674,  692. 

^  Byne  v.  Moore,  supra. 


72  LAW  OF  TORTS.  [Part  I. 

It  follows  that  this  action  for  a  malicious  prosecution 
cannot  be  maintained  without  proof  of  damage  when  the 
prosecutor  has  procured  the  indictment  of  the  plaintiff  for 
the  commission  of  that  which  is  not  a  criminal  offence. 
For  example :  The  defendant  procures  the  plaintiff  to 
be  indicted  for  the  killing  of  the  former's  cattle.  The 
plaintiff  must  prove  special  damage  ;  the  offence,  though 
charged  as  a  crime,  being  only  a  trespass.^ 


§  6.     Of  Analogous  Wrongs. 

If  the  prosecution  fail  by  reason  of  the  circumstance 
that  the  court  in  issuing  its  warrant  exceeded  its  jurisdic- 
tion, or  that  the  warrant  or  indictment  was  defective,  it 
might  not  be  clear  in  principle  whether  the  accused  should 
sue  for  malicious  prosecution  or  for  slander ;  supposing 
the  charge  to  have  been  defamatory.  It  would  give  him 
an  obvious  advantage  to  sue  for  slander,  since  then  he 
would  not  be  compelled  to  prove  a  want  of  probable  cause 
or  the  existence  of  malice ;  and  the  proper  remedy  is 
deemed  to  be  an  action  for  malicious  prosecution.^ 

In  this  connection  attention  should  be  directed  to  ac- 
tions for  abuse  of  the  process  of  the  courts.  An  action  is 
given  by  law  for  such  an  act  without  requiring  the  plain- 
tiff to  prove  either  the  termination  of  the  proceeding  in 
which  the  abuse  of  process  has  taken  place,  or  the  want 

1  Frierson  v.  Hewitt,  2  Hill  (S.  Car.),  499. 

2  Pippet  V.  Hearn,  5  B.  &  Aid.  634 ;  Morris  v.  Scott,  21  Wend. 
281  ;  Stone  v.  Stevens,  12  Conn.  219  ;  Hays  v.  Younglove,  7  B.  Mon. 
545  ;  Shaul  v.  Brown,  28  Iowa,  37.  See  Braveboy  v.  Cockfield,  2 
McMull.  270  ;  Turpin  v.  Eemy,  3  Blackf.  210.  Contra,  Bixby  v. 
Brundige,  2  Gray,  129.  If  the  supposed  court  was  no  court  known  to 
the  law,  as  e.  g.  if  it  was  only  some  self-constituted  body  like  a  vigi- 
lance committee,  an  action  for  defamation  could  probably  be  main- 
tained ;  of  course  an  action  for  false  imprisonment  would  be  proper. 


Chap.  II.  §  6.J        MALICIOUS  PROSECUTION.  73 

of  probable  cause  for  instituting  that  proceeding.  For 
example  :  The  defendant  under  process  of  the  court  in  an 
action  for  a  debt  not  due,  procures  the  plaintiff  through 
duress  to  deliver  valuable  property  (a  ship's  register)  to 
him.  The  defendant  is  liable  in  dailiages,  without  evi- 
dence of  the  termination  of  the  suit  or  of  the  want  of 
probable  cause. ^  Nor  (probably)  need  malice  be  proved, 
apart  from  the  abuse  of  process. 

To  maintain  such  an  action,  however,  the  plaintiff's 
case  must  be  something  other  than  a  proceeding  for  a 
malicious  prosecution.  The  ground  of  action  must  be, 
not  a  false  prosecution  (that  is,  a  prosecution  upon  an 
accusation  which  has  been  tried  and  not  sustained),  but 
an  unlawful  use  of  legal  process  ;  and  such  an  act  may  be 
committed  as  well  in  the  course  of  a  well-founded  prose- 
cution as  in  a  false  one. 

If  the  wrong  suffered  consist  in  an  unlawful  arrest,  the 
action  will  be  for  a  false  imprisonment,  of  which  here- 
after, or  for  a  malicious  arrest ;  '^  if  it  consist  in  an  unlaw- 
ful extortion  of  a  contract  or  of  property,  the  action  will 
in  substance  be  for  duress,  an  example  of  which  has 
already  been  given.'  Other  instances  may  be  found  in 
actions  for  malicious  issuance  of  a  warrant,*  the  levying 
of  an  execution  for  far  more  than  is  due,^  the  wrongful 

1  Grainger  v.  Hill,  4  Bing.  N.  C.  212  ;  s.  c.  L.  C.  Torts,  184. 

2  Jenings  v.  Florence,  2  C.  B.  n.  s.  467.  See  32  &  33  Vict.  e.  62. 
§  18  :  Daniels  v.  Fielding,  16  M.  &  W.  200  ;  Gibbons  v.  Alison,  8 
C.  B.  181. 

^  In  case  a  contract  were  thus  obtained,  the  injured  party  could 
elect  to  affirm  the  validity  of  the  contract,  and  sue  for  the  duress,  or  lie 
could  deny  the  validity  of  the  agreement,  and  plead  the  duress  in  an 
action  upon  it. 

<  Cooper  V.  Booth,  3  Esp.  135  ;  Phillips  v.  Naylor,  4  H.  &  TST.  565. 

5  Churchill  v.  Siggers,  3  El.  &  B.  938  ;  Jenings  u.  Florence,  supra; 
Somner  v.  Wilt,  4  Serg.  &  B.  19  ;  Hilliard  v.  Wilson,  65  Texas. 
286. 


74  LAW  OF  TORTS.  [Part  L 

levy  of  an  attachment,^  and  the  malicious  causing  an  exe- 
cution to  issue  against  one  on  behalf  of  the  public.^ 
These  are  cases  of  the  wrongful  resort  to  rather  than  of 
abuse  of  process. 


Recent  English  decisions  have  also  brought  to  light  the 
existence  of  a  right  of  action  for  maintenance.^  This  is 
a  tort  founded  upon  early  statutes  making  maintenance 
a  criminal  offence  ;  *  an  action  for  damages  being  permitted 
only  where  the  defendant  has  aided  the  prosecution  of 
some  suit  in  which  he  had  no  interest,  or,  it  seems,  motive 
other  than  that  of  stirring  up  or  keeping  alive  strife.  It 
has  lately  been  decided  that  if  the  defendant's  conduct 
was  based  on  charity,  reasonable  or  not,  the  action  will 
fail.5 

1  Stewart  v.  Cole,  46  Ala.  646 ;  Spengler  v.  Davy,  15  Gratt.  381. 

2  Craig  V.  Hasell,  4  Q.  B.  481. 

8  Bradlaugli  v.  Newdegate,  11  Q.  B.  D.  1  ;  Harris  v.  Brisco,  17 
Q;  B.  Div.  504;  Metropolitan  Bank  v.  Pooley,  10  App.  Cas.  210. 

*  It  is  doubtful  if  a  corporation  can  be  liable  for  the  offence.  10  App. 
Cas.  at  p.  218,  Lord  Selborne. 

*  Harris  v.  Brisco,  supra. 


CHAPTER  III, 

CONSPIRACY, 
§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  carry  out,  wholly  or  partly,  agaiust  him,  to  his  damage, 
any  unlawful  conspiracy  entered  into  with  C. 

The  law  of  conspiracy,  in  its  civil  aspect,  has  been 
treated  as  a  branch  of  the  law  of  malicious  prosecution  ; 
and  with  that  subject  it  has,  indeed,  in  one  of  its  features, 
a  close  connection.  Civil  actions  for  conspiracy  were  for- 
merly instituted,  in  most  cases,  for  redress  on  account  of 
unlawful  combinations  for  instituting  criminal  prosecu- 
tions of  the  grade  of  felony.  Combinations  for  other 
unlawful  purposes  were  redressed  in  other  forms  of  ac- 
tions ;  generally,  it  appears,  in  an  action  of  deceit,  some- 
times, however,  in  an  action  of  trespass. 

Distinct  and  peculiar  rules  of  law  prevailed  in  former 
times  concerning  conspiracies  of  the  first-named  class.  A 
writ  of  conspiracy  could  be  sustained  only  by  proof  of  an 
actual  combination  to  indict  the  plaintiff  of  felony,  with 
the  other  elements  of  an  action  for  malicious  prosecution. 
Failure  to  prove  the  combination  was  fatal,  even  though 
enough  were  proved  to  establish  a  right  of  action  for  a 
simple  false  prosecution.  The  action  for  the  latter  of- 
fence was  a  distmct  proceeding.     In  later  times  the  writ 


76  LAW  OF  TORTS.  [Part  I. 

of  conspiracy  was  employed  for  the  redress  of  prosecu- 
tions below  the  grade  of  felony ;  and  then  it  came  to  be 
considered  unnecessary,  in  such  an  action,  to  establish  an 
actual  combination,  notwithstanding  the  allegation  of  con- 
spiracy. The  law,  however,  relating  to  prosecutions  for 
felony  remained  as  before,  and  the  plaintiff  failed  if  the 
evidence  showed  that  the  prosecution  was  instituted  or 
procured  by  but  one  person.^ 

This  distinction,  however,  has  in  modern  times  become 
obsolete.  An  action  for  an  alleged  conspiracy  can  now 
be  maintained  in  any  case  otherwise  proper,  though  the 
plaintiff  be  unable  to  prove  that  the  unlawful  act  com- 
plained of  was  undertaken  by  more  than  one  person. '^ 
The  result  is,  that  conspiracy  as  a  ground  of  civil  liability 
has  nearly  disappeared  from  the  law,^  leaving  little  else 
than  a  phase  of  agency.^  The  existence,  then,  of  an  ac- 
tual conspiracy  being  unnecessary  to  the  plaintiff's  action, 
nothing  remains,  if  he  prove  against  but  one  person, 
except  that  which  would  be  the  ground  of  action  agamst 
that  person  had  he  been  alone  sued.  The  case  would 
then  be  nothing  more  than  an  action  for  deceit,  malicious 
prosecution,  false  imprisonment,  or  other  like  tort,  accord- 
ing to  the  nature  of  the  wrong  actually  provable. 

But  it  would  hardly  be  satisfactory  to  leave  the  subject 
here.  If  it  be  said  of  conspiracy,  as  it  may  be,  that  it  is 
no  longer  a  cause  of  civil  redress  even  when  damage  has 

1  See  upon  this  subject  the  historical  notes  on  malicious  prosecu- 
tion and  conspiracy,  in  the  author's  Leading  Cases  on  Torts,  pp.  190- 
196,  210-214. 

2  Savill  V.  Roberts,  1  Lord  Raym.  374,  379  ;  1  Saund.  230,  note  ; 
Parker  v.  Huntington,  2  Gray,  124  ;  Hutchins  v.  Hutchins,  7  Hill, 
104  ;  s.  c.  L.  C.  Torts,  207.  See  Mogul  Steamship  Co.  v.  McGregor, 
21  Q.  B.  D.  544  ;  s.  c.  23  Q.  B.  Div.  598. 

3  The  case  is  different  with  criminal  liability  ;  that  remains  a  great 
branch  of  the  law. 

*  See  e.  g.  Page  v.  Parker,  43  N.  H.  363. 


Chap.  III.  §  2.]  CONSPIRACY.  77 

followed,  it  may  be  answered  that  the  same  is  true  of 
malice  generally ;  nor  is  fraud  alone  a  cause  of  action. 
And  though  conspiracy  may  not  be  an  element  of  liability 
in  the  same  sense  that  either  of  these  may  be,  still  there 
are  cases  where  the  defendant's  liability  turns  wholly  upon 
the  question  of  the  existence  of  a  conspiracy  and  his 
participation  therein.  It  may  become  important  then  to 
know  whether  in  a  particular  case  there  has  been  a 
conspiracy. 

There  are,  indeed,  three  phases  of  the  subject  which 
make  it  important  to  consider  conspiracy  in  a  book  on 
torts.  First,  the  plaintiff  may  have  so  stated  his  case 
against  a  defendant,  who  did  not  in  fact  participate  in  the 
doing  of  the  harm  complained  of,  as  to  be  unable  to 
recover  with  evidence  of  anything,  such  as  an  ordinary 
agency,  short  of  conspiracy ;  ^  the  existence  of  a  con- 
spiracy has  then  become  an  element  of  his  case.  Sec- 
ondly, the  case  may  be  such  that  no  damage  could  be 
inflicted,  in  the  nature  of  things,  without  an  unlawful 
combination.-  Thirdly,  it  may  be  that  in  a  case  turning 
on  malice,  e.  g.  a  case  of  malicious  prosecution,  the  only 
means  of  proving  the  malice  is  to  prove  a  conspiracy. 

§  2.     Of  Malice  and  the  Combination. 

In  the  sense  of  the  existing  law,  a  conspiracy  is  simply 
a  confederacy  or  combination  of  two  or  more  persons  to 
do  an  unlawful  act,  or  to  do  a  lawful  act  in  an  unlawful 
manner.  The  wrong  is  a  phase  of  malice  ;  the  conspiracy 
itself  constituting,  or  at  least  forming  evidence  of,  the 
malice  alleged  by  the  plaintiff.^ 

To  make  a  party  liable  wifli  others  for  a  conspiracy  re- 

»  See  Gregory  v.  Brunswick,  6  Man.  &  G.  953,  959. 
2  Id.  »  Id.  205,  953.. 


78  LAW  OF  TOKTS.  [Part  I. 

suiting  in  damage,  he  must  either  have  originally  colluded 
with  the  rest,  or  afterwards  joined  them  as  an  associate, 
or  actually  participated  in  the  execution  of  the  scheme,  or 
afterwards  adopted  it.  A  defendant  cannot  be  found 
guilty  by  evidence  of  mere  silent  observation,  even  with 
approval,  of  the  conspiracy.  For  example  :  The  defend- 
ant is  shown  to  have  been  cognizant  of,  and  to  have 
(silently)  approved,  the  unlawful  enticing  away  of  the 
plaintiff's  daughter.  This  is  not  sufficient  to  establish  a 
conspiracy  and  breach  of  duty ;  the  defendant  not  having 
thereby  become  a  party  to  the  plot.^ 

Nor  is  it  material,  where  the  object  of  the  unlawful 
combination  is  plunder  and  gain  to  the  conspirators,  that 
some  of  them  derive  no  benefit  from  the  execution  of  the 
scheme.  They  are  equally  liable,  though  the  overt  acts 
were  committed  by  others  who  refused  to  divide,  or  failed 
to  obtain,  the  spoil.  For  example  :  Several  agents,  of 
whom  the  defendant  is  one,  conspire  to  injure  theii-  com- 
mon principal,  and  succeed  ;  the  defendant  is  liable  though 
he  derives  no  benefit  from  the  success. ^ 

It  is  equally  well  settled  that  though  there  was  no  in- 
tention of  making  a  profit  out  of  the  scheme,  but  only  a 
desire  to  harass  .and  inflict  loss  upon  the  plaintiff,  the 
action  is  maintainable.  For  example :  The  defendant, 
an  attorney,  knowing  that  his  client  has  no  just  claim 
against  the  plaintiff,  maliciously  and  without  probable 
cause,  procures,  in  concert  with  his  client,  an  arrest  and 
civil  prosecution  of  the  plaintiff.  The  defendant  is  liable 
for  the  damage  sustained  by  the  plaintiff.^ 

Again,  as  has  already  been  suggested,  there  may  be 
cases  in  which  the  wrong  could  not  be  done  without  an 
unlawful  combination ;  in  such  a  case  proof  of  conspiracy 

1  Brannock  v.  Bouldin,  4  Ired.  61. 

2  Walsham  v.  Stainton,  1  De  G.  J.  &  S.  678. 

3  Stockley  v.  Hornidge,  8  Car.  &  P.  11. 


Chap.  III.  §  3.]  CONSPIRACY.  79 

must,  it  seems,  be  made.  Thus,  one  man  alone  could 
hardly  succeed  in  hissing  an  actor  off  the  stage ;  and 
though  others  might  join  him,  there  would  probably  be  no 
redress,  however  unjust  the  act.  But  preconcert  would 
make  a  different  case.  For  example  :  The  defendant  and 
others  conspire  to  prevent  the  plaintiff,  an  actor,  from 
performing  at  a  theatre,  and,  in  pursuance  of  the  con- 
spiracy, employ  others  to  go  to  the  theatre  and  interrupt 
the  plaintiff  in  his  part,  and  the  plan  is  carried  out,  to  the 
damage  of  the  plaintiff.     The  defendant  is  liable.^ 

§  3.     Of  Damage. 

It  is  of  the  essence  of  liability  for  conspiracy,  when 
conspiracy  is  made  a  ground  of  civil  action,  that  it  cause 
damage.^  For  example  :  The  defendants  are  alleged  to 
have  conspired  together,  maliciously  and  without  probable 
cause,  to  institute,  and  then  to  have  instituted,  ah  action 
against  the  present  plaintiff"  in  the  name  of  a  third  person, 
for  their  benefit.  No  damage  is  alleged.  The  plaintiff 
cannot  recover.^  Again :  The  defendants  conspire  suc- 
cessfully, by  false  representations,  to  induce  the  plaintiff's 
father  to  revoke  his  will  in  favor  of  the  plaintiff.  The 
plaintiff  sustains  no  damage  in  contemplation  of  law,  as 
no  legal  right  of  the  plaintiff  was  intringed,* 

1  Gregory  v.  Brunswick,  6  Man.  &  G.  205,  953. 

2  Cotterell  V.  Jones,  11  C.  B  713;  Hutchins  v.  Hutchins,  7  Hill, 
104  ;  s.  c.  L.  C.  Torts,  207  ;  Place  v.  Minster,  65  N.  Y.  89  ;  Kimball 
V.  Harman,  34  Md.  407. 

8  Cotterell  v.  Jones,  supra. 

*  Hutchins  v.  Hutchins,  supra ;  ante,  pp.  12,  13. 


CHAPTER  ly. 

MALICIOUS    INTERFEREXCE   WITH   CONTRACT. 
§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  induce,  maliciously,  C  to  break  a  contract  between  B 
and  C  (to  B's  damage  ?) . 

§  2.     Of  Malice. 

The  subject  of  malicious  interference  with  the  contracts 
of  others,  causing  a  breach  of  them,  is  a  tort  of  but  re- 
cent distinct  and  settled  recognition.  To  entice  away  a 
servant  from  his  master  has  been  wrongful  from  early 
times  ;  ^  but  that,  in  England,  is  a  statutory  doctrine,'^  pe- 
culiar, probably,  to  the  case  of  servants  who  laboi;  with 
their  hands. ^  In  such  cases  it  is  perhaps  not  necessary, 
in  England,  that  the  act  of  the  defendant  should  have 
been  malicious,  further  than  that  it  was  done  with  notice 
of  the  relation  of  master  and  servant.  The  distinction 
does  not  obtain  in  this  country.* 

1  See  Lumley  v.  Gye,  2  El.  &  B.  216  ;  s.  c.  L.  C.  Torts,  306.  This 
case  is  an  epitome  of  the  history  of  the  whole  subject.  See  especially 
the  dissenting  opinion  of  Mr.  Justice  Coleridge. 

2  Statute  of  Laborers,  23  Edw.  3. 

3  Wightman,  J.  in  Lumley  v.  Gye  ;  Bowen  v.  Hall,  6  Q.  B.  Dir. 
333.  See  Mogul  Steamship  Co.  v.  McGregor,  21  Q.  B.  D.  544  ;  s.  c. 
23  Q.  B.  Div.  598.     But  see  Walker  v.  Cronin.  107  Mass.  555,  567. 

*  "Walker  v.  Cronin,  supra,  journeymeii.  shoemakers. 


Chap.  IV.  §  2.]      INTERFERING   WITH   CONTRACT.  81 

Since  the  year  1853  it  has  been  held  in  England  that 
for  a  third  person  maliciously  to  induce  a  party  to  a  con- 
tract to  break  his  undertaking  is  actionable,  at  least  if 
damage  ensue.  For  example  :  W  is  under  an  engagement 
with  the  plaintiff  to  sing  exclusively  at  his  theatre  for  a 
certain  season.  The  defendant,  '  maliciously  intending 
to  injure  the  plaintiff,'  induces  W  to  break  her  contract 
and  refuse  to  sing  for  the  plaintiff  during  the  time  agreed 
upon.     This  is  a  breach  of  duty.^ 

In  such  cases,  and  also,  by  our  law,  in  cases  of  servants 
who  work  with  their  hands,  malice  is  necessary  to  the 
right  of  action.  But  what  the  term  '  malice '  here  means 
was  not  left  clear  by  the  case  just  cited.  An  expression 
of  one  of  the  justices  in  that  case  might  indicate  that 
to  cause  the  breach,  with  notice  of  the  existence  of  the 
contract,  would  be  sutficient  to  constitute  malice ;  ^  but 
that  would  be  to  put  a  dangerous  check  upon  common 
and  generally  deemed  lawful  acts  of  competition,  and 
something  more  than  this  has  accordingly  been  thought 
necessary.*  In  a  late  reconsideration  of  the  subject  in  a 
similar  case  of  contract  for  exclusive  services,  not  man- 
ual, the  English  Court  of  Appeal  treated  malice  as  a 
necessary  part  of  the  plaintiff's  case,  and  considered  the 
term  as  meaning  that  the  defendant  must  have  sought  to 
induce  the  party  to  break  his  contract  '  for  the  indirect 
purpose  of  injuring  the  plaintiff,  or  of  benefiting  the 
defendant  at  the  expense  of  the  plaintiff.'  *    A  malicious 

1  Lumley  v.  Gye,  2  El.  &  B.  216  ;  s.  c.  L.  C.  Torts,  306. 

2  '  It  must  now  be  considered  clear  law  that  a  person  who  wrong- 
fully and  maliciously,  or,  which  is  the  same  thing,  with  notice,  inter- 
rupts the  relation  subsisting  between  master  and  servant,'  etc. 

3  See  Pollock,  Torts,  480,  2d  ed. 

*  Bowen  v.  Hall,  6  Q.  B.  Div.  333,  338,  Lord  Esher ;  Lord  Cole- 
ridge dissenting.  The  argument  that  the  damage  was  caused,  not  by  the 
defendant,  but  by  the  party  who  broke  his  contract,  was  answered  by 

6 


82  LAW  OF  TORTS.  [Part  I. 

act  of  that  kind  was  held  to  be  a  wrongful  act.^  This 
appears  to  mean  that  the  act  is  shown  to  be  wrongful  if 
the  plaintiff  shows  that  it  was  done  without  any  jus'*^ 
motive,  or  without  the  existence  of  any  right. ^ 


§  3.     Of  Damage. 

Whether  other  damage  than  that  of  the  breach  of  the 
contract  is  necessary  has  not  been  clearly  determined ; 
though  there  is  intimation  that  it  is.^  It  is  enough  to 
constitute  damage,  however,  at  least  in  America,  that  an 
engagement  to  service  for  no  fixed  time  has  been  inter- 
rupted. For  example :  The  defendant  maliciously  in- 
duces shoemakers  to  leave  the  plaintiff's  employment. 
This  is  a  breach  of  duty,  for  the  plaintiff  was  entitled 
to  the  fruits  and  advantages  to  arise  from  a  continuance 
of  the  employment.^ 

It  is  possible  that  in  the  example  given  there  was  not 
so  much  as  a  breach  of  contract,  for  the  shoemakers 
may  have  been  employed  from  day  to  day,  or  by  the  par- 
ticular job,  and  so  may  have  had  a  right  to  leave  at  the 

Lord  Esher's  saying  that  the  result  was  both  intended  and  brought 
about  by  the  defendant. 

^  Id.     Comp.  what  is  said,  ante,  p.  71,  note. 

2  See  Walker  v.  Cronin,  107  Mass.  555,  562,  564.  Welles,  J.  for 
the  court  :  '  Every  one  has  a  right  to  eiijoy  the  fruits  and  advantages 
of  his  own  enterprise,  skill,  and  credit.  He  has  no  right  to  be  pro- 
tected against  competition  ;  but  he  has  a  right  to  be  free  from  mali- 
cious and  wanton  interference,  disturbance,  or  annoyance.  If  dis- 
turbance or  loss  comes  .  .  .  from  the  merely  wanton  or  malicious  acts 
of  others,  without  the  justification  of  competition  or  the  service  of  any 
interest  or  lawful  purpose,  it  then  '  is  unlawful. 

8  See  Bowen  v.  Hall,  6  Q.  B.  Div.  333,  337  ;  Pollock,  Torts,  480, 
2d  ed.  Special  damage  was  alleged  in  Lumley  v.  Gye,  and  shown  in 
Bowen  v.  Hall. 

*  Walker  v.  Cronin,  107  Mass.  555. 


Chap.  IV.  §4.]       INTERFERING  WITH  CONTRACT.  83 

end  of  any  clay  or  job.  But  even  if  that  was  the  case, 
there  was  legal  damage  because  the  plaintiff  had  a  right 
to  receive  their  services,  without  interference  by  others, 
so  long  as  they  were  disposed  to  give  them ;  he  would 
have  a  right  against  others  to  the  enjoyment  of  their  ser- 
vices even  as  a  gratuity.^  It  may  be  thought  doubt- 
ful, however,  whether  interference  with  such  a  riglit,  or 
with  that  in  the  example,  could,  in  itself,  be  considered 
special  damage.  There  may  be  ground  then  for  consider- 
ing the  question  as  still  an  open  one,  whether  for  the  pur- 
poses of  this  action  special  damage  must  be  proved. 

§  4.     Op  the  distinction  between  Contract  and 

Property. 

"What  has  been  said  in  exposition  of  the  statement  of 
the  duty  in  question  will  show,  when  read  in  contrast 
with  cases  of  wrongs  to  property  in  the  ordinary  sense, 
that  contract  is  not  treated  as  property,  though  the  first 
impression  from  the  subject  might  be  that  it  was.  The 
distinction  between  rights  of  property  and  rights  of  con- 
tract is  not  impugned.  The  former  are  absolute,  and 
breach  of  them  is  a  breach  therefore  of  an  absolute  duty ; 
that  is  to  say,  it  is  not  necessary  to  consider  the 
motive  with  which  an  interference  with  a  right  of  prop- 
erty takes  place.  Nor  indeed  is  special  damage  neces- 
sary, in  such  a  case,  to  constitute  the  tort. 

1  See  post,  chapter  viii.  §  3 ;  ante,  p.  12,  in  Introduction. 


CHAPTER  V. 
SLANDER  AND  LIBEL. 

§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  for- 
bear to  publish  of  B  (1)  defamation  in  its  nature  action- 
able per  se,  (2)  defamation  in  its  nature  not  actionable 
per  se  to  the  damage  of  B. 

1.  Defamation  is  any  language,  oral  or  written,  or 
any  figure,  tending  to  bring  the  person  of  whom  it  is 
published  into  hatred,  ridicule,  or  disgrace,  or  to  injure 
him  in  respect  of  his  vocation. 

2.  The  term  '  figure '  is  here  used  to  denote  painting, 
picture,  sign,  or  effigy. 

3.  Slander  is  oral  defamation. 

4.  Libel  is  defamation  by  writing,  printing,  or  figure. 

5.  Publication  is  the  making  defamation  known  to  a 
third  person. 

6.  Whenever  language  is  spoken  of  as  defamatory  it 
is  understood  to  be  false. 

7.  What  the  phrase  '  defamation  in  its  nature  action- 
able per  se '  means  will  be  made  known  by  the  proposition 
of  law  following,  and  the  consideration  of  its  parts. 

The  general  proposition  of  law  is,  that  the  first  of  the  two 
above-stated  duties  is  violated  by  A  by  the  publication 
of  words,  language,  or  figure  of  a  false  and  defamatory 


Chap.  V.  §2]  SLANDER   AND   LIBEL.  85 

character  couceruiug  B,  in  either  of  the  following  ways  : 
(1)  where  A  imputes  to  B  the  commission  of  a  criminal 
offence  punishable  by  imprisonment,  or  otlier  corporal 
penalty,  in  the  first  instance,^  clearly  if  the  offence  is  in- 
dictable and  involves  moral  turpitude  ;  (2)  where  A  im- 
putes to  B  the  having  a  contagious  or  infectious  disease 
of  a  disgraceful  kind  ;  (3)  where  A  makes  a  derogatory' 
imputation  concerning  B  in  respect  of  his  office,  business, 
or  occupation  ;  (4)  where  A  makes  an  imputation  concern- 
ing B  tending  to  disinherit  him  ;  (5)  where  the  defamation 
is  a  libel.  Each  of  these  classes  of  defamation  must  be 
examined. 


§  2.     Of  the  Interpretation  of  Language. 

Before  proceeding  to  the  consideration  of  any  of  these 
classes  of  breaches  of  duty,  it  should  be  observed  that, 
subject  perhaps  to  one  exception,  the  language  or  figure 
complained  of  is  to  be  understood  presumptively  in  its 
natural  and  usual  sense,  i.e.  in  the  sense  in  which  the 
persons  who  heard  or  read  or  saw  it,  as  men  of  ordinary 
intelligence,  would  understand  it.^     It  is  not  to  be  con- 

1  Pollock,  Torts,  219,  2d  ed.  It  is  not  enough  that  the  offence  is 
punishable  by  '  fine  in  the  first  instance,  with  possible  imprisonment  in 
default  of  payment.'  Id.,  referring  to  "Webb  v.  Beavan,  11  Q.  B.  D. 
609.  The  offence  charged  need  not  in  England  be  indictable.  Webb 
V.  Beavan. 

2  Hankinson  v.  Bilby,  16  M.  &  "W.  442  ;  Simmons  v.  Mitchell,  6 
App.  Cas.  156.  Whether  the  words  in  slander  are  legally  defamatory 
or  not  is,  commonly  at  least,  a  question  of  law.  Capital  Bank  v.  Henty, 
7  App.  Cas.  741.  In  criminal  cases  of  libel  the  jury  were  made  the 
judges  whether  the  language  was  libellous  or  not,  in  England,  by  Fox's 
Act,  32  Geo.  3,  c.  60.  The  same  practice  prevails  in  this  country. 
The  practice  under  Fox's  Act  has  been  adopted  in  England  in  civil 
cases  of  libel  also  ;  in  some  of  our  States  the  same  is  true,  in  others 

Dot. 


86  LAW  OF   TORTS.  [Part  L 

strued  in  a  milder  sense  ('  mitiori  sensu ')  merely  because 
it  is  capable,  by  a  forced  construction,  of  being  inter- 
preted in  an  innocent  sense.  For  example  ;  The  defend- 
ant publishes  of  the  plaintiff  the  following  words  :  '  You 
are  guilty  of  the  death  of  D.'  This  is  an  imputation  of 
the  commission  of  murder,  and  is  not  to  be  construed 
'  mitiori  sensu.'  ^ 

It  should,  however,  be  clear,  in  order  to  make  language 
actionable  without  proof  of  damage,  that  the  imputation 
was  slanderous  or  libellous  (according  to  its  nature)  within 
the  meaning  of  some  one  of  the  above  stated  five  classes. 
If  this  be  not  the  case,  it  will  not  be  deemed  a  breach  of 
the  duty  ;  and  this  too  whether  the  question  of  interpreta- 
tion come  before  the  court  or  before  the  jury.  In  one 
case,  at  least,  the  interpretation  adopted  has  been  appar- 
ently contrary  to  the  understanding  of  men  of  ordinary 
intelligence  ;  and  that  is  where  an  imputation  is  made  of 
what  would  ordinarily  be  understood  as  a  crime,  but  the 
language  of  which  does  not  necessarily  import  a  crime  in 
the  legal  sense.  For  example  :  The  defendant  publishes 
of  the  plaintiff  the  following  words :  '  He  has  taken  a 
false  oath  against  me  in  Squire  Jamison's  court.'  This 
is  deemed  not  to  be  an  imputation  of  the  commission  of 
perjury  ;  "^  the  term  '  perjury '  signifying  the  taking  of  a 
false  oath  knowingly,  before  a  court  of  justice,  with  ref- 
erence to  a  cause  pending. 

Apart  from  this  particular  exception  in  regard  to  the 

1  Peake  v.  Oldham,  1  Cowp.  275  ;  s.  c.  L.  C.  Torts,  73. 

2  Ward  V.  Clark,  2  Johns.  10;  s.  c.  L.  C.  Torts,  81.  See  Crone  v. 
Angell,  14  Mich.  340  ;  Brown  v.  Hanson,  53  Ga.  632.  'The  offence 
need  not  be  specified  ...  at  all  if  the  words  impute  felony  generally. 
But  if  particulars  are  given,  they  must  he  legally  consistent  with  the 
offence  imputed.'  Pollock,  Torts,  220,  2d  ed.,  referring  to  Jackson  v. 
Adams,  2  Bing.  N.  C.  402.  See  Stitzell  v.  Eeynolds,  67  Penn.  St.  54  ; 
Brown  v.  Myers,  40  Ohio  St.  99 ;  Underhill  v,  Welton,  32  Vt.  40.  But 
see  Stroebel  v.  Whitney,  31  Minn.  384. 


Chap.  V.  §  3.]  SLANDER  AND  LIBEL.  87 

legal  sense  of  a  crime,  it  follows  from  what  has  been  said 
that  it  is  immaterial  whether  the  defamatory  charge  be 
affirmative  and  direct,  or  indirect  so  as  to  be  matter  of 
inference  merely,  or  that  it  is  ironical,  or  that  it  is  made 
in  allegory  or  other  artful  disguise.  It  is  enough  that  the 
charge  would  naturally  be  understood  to  be  defamatory 
l)y  men  of  average  intelligence. 

§  3.     Of  the  Publication  of  Defamation  and  Special 

Damage. 

In  accordance  with  observation  5,  in  the  introductory 
section,  it  should  be  noticed  that  defamation  is  not 
published  when  addressed  only  to  the  plaintiff,  no  one 
else  being  present^  who  could  understand  the  language.^ 
That  is,  the  language  or  representation  cannot  in  such  a 
case  be  actionable.  And  this  is  true,  though  the  alleged 
wrong  be  directly  followed  by  great  dejection  of  mind  on 
the  part  of  the  plaintiff,  and  consequent  sickness  and  in- 
ability to  carry  on  bis  usual  vocation,  and  expense  attend- 
ing upon  his  restoration  to  health  or  upon  the  employment 
of  help  to  carry  on  his  business.  For  example :  The 
defendant  says  to  the  plaintiff,  '  You  have  committed 
adultery  with  F.'  The  plaintiff,  a  farmer,  suffers  imme- 
diate distress  of  mind  and  body,  becomes  sick  and  unable 
to  attend  to  his  work,  his  crops  suft'er,  and  he  is  compelled 

1  Sheffill  V.  Van  Deusen,  13  Gray,  304.  See  Marble  v.  Chapin,  132 
Mass.  225,  226.  Communication  of  defamation  by  the  defendant  to  his 
wife  has  lately  been  held  in  England  not  to  be  publication.  Wennhak 
V.  Morgan,  20  Q.  B.  D.  635.  But  an  accusation  of  the  husband  in 
the  presence  of  his  wife  (or  the  converse)  would  be  a  publication.  No- 
lan V.  Traber,  49  Md.  460  ;  Hawver  v.  Hawver,  78  111.  412  ;  Duval  v. 
Davey,  32  Ohio  St.  604.  See  Wenman  v.  Ash,  13  C.  B.  836,  which 
suggests  a  doubt  in  regard  to  accusations  of  the  wii'e  made  to  the  hus- 
band. 

2  See  Hurtert  v.  Weincs,  27  Iowa,  134. 


88  LAW  OF  TORTS.  [Part  I 

to  employ  extra  help  to  carry  on  necessary  work.  The 
defendant  has  not  violated  any  legal  duty  to  the  plaintiff.^ 

Indeed,  if  the  language  complained  of  be  not  actionable 
per  se  (that  is,  if  it  be  not  actionable  without  the  proof 
of  special  damage) ,  the  fact  that  the  publication  of  the 
defamation  occurred  in  the  presence  of  a  third  person 
who,  by  authority,  reported  it  to  the  plaintitf  with  such  a 
result  as  that  stated  in  the  foregoing  example,  would  not, 
it  is  held,  make  the  defamer  liable.^ 

This,  however,  proceeds  upon  the  ground  that  the  effect 
of  distress  of  mind,  followed  by  sickness,  is  not  such 
damage  as  the  law  requires  when  the  defamation  is  not 
actionable  per  se.  The  rule  of  law  upon  this  subject  is, 
that  defamation  not  actionable  per  se  may  be  a  breach  of 
duty  if  it  be  attended  with  special  damage.  But  special 
damage  (and  damage  of  a  general  nature  as  well)  must  be 
the  natural  aud  usual  result  of  the  wrong  complained  of, 
as  effect  follows  cause  ;  and,  as  it  is  sometimes  declared 
in  effect,  mental  distress  with  its  consequences  will  not 
satisfy  this  doctrine,  effect  upon  the  mind  and  then  upon 
health  being  largely  due  to  individual  peculiarities,  and 
not  being  certain  or  uniform.^  Or,  better  still,  damage 
resulting  from  fear  of  injury  to  reputation,  or  from 
wounded  feelings,  is  not  damage  to  reputation  ;  that  can 
only  be  injured  when  it  has  been  defamed  before  a  third 
person. 

1  Compare  Terwilliger  v.  Wands,  17  N.  Y.  54,  63,  and  Wilson 
V.  Goit,  Id.  442,  wliicli,  taken  together,  justify  the  example. 

■■2  Terwilliger  v.  Wands,  17  N.  Y.  54,  63,  reaffirmed  in  Wilson  v. 
Goit,  Id.  442,  and  overruling  Bradt  v.  Towsley,  13  Wend.  253,  and 
Fuller  V.  Fenner,  16  Barb.  333.  But  see  McQueen  v.  Fulgham,  27 
Texas,  463. 

3  Such  damages  are  commonly  spoken  of  as  'remote.'  Comp.  Vic- 
torian Rys.  Comm'rs  v.  Coultas,  13  App.  Cas.  222.  But  the  authori- 
ties are  not  quite  consistent ;  mental  distress  being  treated  as  ground 
for  damages  if  a  right  of  action  is  otherwise  shown. 


Chap.  V.  §3.]  SLANDER  AND  LIBEL.  89 

The  damage  complauied  of  must  then  in  all  eases, 
whether  general  or  special,  have  been  sustained  through 
the  action  of  a  third  person.  Special  damage  may  so  re- 
sult in  several  ways,  so  as  to  make  the  publication  of 
defamation  actionable  when  it  would  not  be  actionable 
per  se  ;  as  by  the  loss  of  a  marriage.  For  example  :  The 
defendant  charges  the  plaintiff,  an  unmarried  female,  with 
unchastity  in  the  presence  and  heaving  of  C,  to  whom  the 
plaintiff  is  engaged  to  be  married.  C,  in  consequence  of 
the  charge,  terminates  the  engagement.  The  defendant 
is  liable  to  the  plaintiff.'^ 

The  same  would  be  true  of  the  loss  of  the  consortium  of 
wife  ^  and  perhaps  of  husband.^  The  same  would  also  be 
true  of  the  refusal  to  the  plaintiff  of  civil  entertainment  at 
a  public  house.*  So  of  the  fact  that  the  plaintiff  has  been 
turned  away  from  the  house  of  her  uncle,  and  charged  not 
to  return  until  she  shall  have  cleared  up  her  character ;  ^ 
and  so  in  general  of  the  loss  by  the  plaintiff  even  of 
gratuitous  hospitable  entertainment.'' 

The  special  feature  of  the  law  of  slander  and  libel» 
however,  consists  in  this,  that  defamation  may  be  action- 
able per  se  ;  and  the  consideration  of  the  various  phases 
of  such  defamation  will  now  follow.  Let  it  be  clearly 
observed,  that  in  defamation  arising  under  any  of  the 
heads  now  to  be  separately  examined,  the  plaintiff  estab- 
lishes the  breach  of  duty,  and  consequently  his  right  to 

1  See  Terwilliger  v.  Wands,  17  N.  Y.  54,  60.  But  see  McQueen  v. 
Fulgham,  27  Texas,  463. 

2  Bigaouette  v.  Paulet,  134  Mass.  123. 

s  See  Lynch  v.  Knight,  9  H.  L.  Cas.  577  ;  Jaynei?  v.  Jayncs,  39 
Hun,  40  ;  Warner  v.  Miller,  17  Abb.  N.  C.  221  ;  Breimaii  v.  Paasch, 
7  Abb.  N.  C.  249.     See  post,  chapter  viii.  §  6. 

*  Olmsted  v.  Miller,  1  Wend.  506.  See  Moore  v.  Meagher,  1  Taunt 
39. 

6  Williams  V.  Hill,  19  Wend.  305. 

^  Id.  ;  Moore  v.  Meagher,  1  Taunt.  39. 


90  LAW  OF  TORTS.  [Part  I. 

recover,  by  simply  proving  publication.^  In  cases  of 
defamatory  publications  not  falling  "onder  the  following 
heads,  the  plaintiff  must  also  prove  damage ;  that  is  the 
only  difference  between  the  two  classes  of  cases. 


§  4,    Of  the  Imputation  of  having  Committed  a  Crime. 

Different  rules  have  obtained  in  different  states  con- 
cerning the  nature  of  the  offence  the  false  imputation  of 
which  is  actionable  per  se.  In  some  States  it  has  been 
laid  down  that,  unless  the  offence  charged  is  indictable 
and  involves  moral  turpitude,  or  unless  it  is  one  the  pun- 
ishment of  which  is  infamous,  there  is  no  right  of  action 
without  proof  of  special  damage.  A  punislnnent  is  infa- 
mous at  common  law  which  disqualifies  the  offender  from 
being  a  witness  in  the  courts  ;  a  punishment  is  not  infa- 
mous when,  for  instance,  it  is  named  in  the  same  category 
with  the  punishment  of  trivial  offences,  such  as  vagrancy, 
begging,  and  fortune  telling,  and  a  charge  of  such  an 
offence  would  not  be  actionable  per  se.  For  example : 
The  defendant  publishes  of  the  plaintiff  the  charge  '  She 
is  a  common  prostitute.'  The  punishment  of  this  offence, 
where  charged,  is  classed  with  the  punishment  of  trivial 
offences  such  as  those  just  mentioned.  The  defendant  is 
not  liable  without  proof  of  special  damage.^ 

^  Webb  V.  Beavan,  11  Q.  B.  D.  609. 

2  Brooker  v.  Coffin,  5  Jolms.  188  ;  s.  c.  L.  C.  Torts,  77  ;  McQueen 
V.  Fnlgham,  27  Texas,  463  ;  Underbill  v.  Welton,  32  Vt.  40  ;  Pollard 
V.  Lyon,  91  U.  S.  225.  See  also  as  to  disgracefulness,  Andres  v. 
Koppenbeaver,  3  Serg.  &  R.  255.  Perbaps  cbarges  of  crime  punisha- 
ble by  imprisonment  in  a  state  prison  would  cover  tbis  class  of  cases. 
Common-law  punishments  of  tbe  pillory,  stocks  (?),  and  tbe  like  were 
infamous  ;  but  tbese  are  of  tbe  past.  Ex  parte  Wilson,  114  U.S.  417. 
Punishment  of  simple  assaults  or  battei'ies  is  not  infamous.  Andres  v. 
KopiK'nbeavor,  supra  ;  Billings  v.  Wing,  7  Vt.  439. 


Chap.  V.  §  4.]  SLANDER  AND  LIBEL.  91 

In  other  States  probably,  as  in  England,  it  would  be 
enough  that  the  crane  was  punishable  in  the  first  instance 
by  imprisonment.^  In  still  other  States  it  is  not  necessary 
that  the  offence  should  be  punishable  by  imprisonment  at 
all,  if  the  offence  is  punishable  and  disgraceful ;  this  rule 
being  laid  down  :  Whenever  an  offence  has  been  charged 
conviction  of  which  subjects  the  offender  to  a  punishment 
which,  though  not  ignominious,  would  bring  disgrace,  the 
accusation,  if  false,  is  actionable  per  se.'^  The  offence, 
accordingly,  need  not  be  indictable. 

It  is  not  necessary  anywhere  that  the  accusation  should 
be  of  the  commission  of  a  crime  in  the  strict  sense ; 
enough,  even  where  the  first  rule  above  stated  prevails, 
that  the  imputation  is  of  the  commission  of  a  misdemeanor 
if  the  offence  involves  moral  turpitude.^  For  example : 
The  defendant  falsely  publishes  of  the  plaintiff  the  words 
'  You  have  removed  my  landmai'ks,  and  cursed  is  he  that 
removeth  his  neighbor's  landmark.'  The  words  are  ac- 
tionable per  se.* 

The  authorities,  further,  are  not  altogether  in  harmony 
in  regard  to  the  question  whether  it  is  necessary  that  the 
charge,  if  true,  would  subject  the  object  of  it  to  punish- 
ment, or  whether  the  test  in  this  particular  is  the  degra- 
dation involved ;  but  the  weight  of  authority  favors  the 
latter  as  the  test,  assuming  that  the  offence  charged  is  in 
law  a  crime.     Although,  then,  the  charge  show  that  the 

1  Ante,  p.  85,  note. 

2  Miller  v.  Parish,  8  Pick.  384  ;  Brown  v.  Nickerson,  5  Gray,  1 
(imputing  drunkenness  to  a  woman  in  a  single  instance).  See  Meyer 
V.  Schleichler,  29  Wis.  646  ;  Frisbie  v.  Fowler,  2  Conn.  707  ;  Zeliff  v. 
Jennings,  61  Texas,  458,  466. 

3  Young  V.   Miller,    3  Hill,  21  ;  Smith  v.   Smith,    2  Sneed,    473  ; 
Beck  V.  Stitzel,  21  Penn.  St.   522.     See  Andres  v.  Koppenheaver, 
Serg.  &  R.  255. 

*  Young  V.  Miller,  supra.  But  the  meaning  of  *  moral  turpitude ' 
is  not  fixed. 


92  LAW  OF  TORTS.  [Part  L 

punishment  has  already  been  suffered,  and  do  not  render 
the  plaintiff  liable  to  indictment,  the  degradation  involved 
in  the  (false)  accusation  renders  the  defendant  liable. 
For  example  :  The  defendant  falsely  says  of  the  plaintiff, 
'  Robert  Carpenter  [the  plaintiff]  was  in  Winchester  jail, 
and  tried  for  his  life,  and  would  have  been  hanged  had  it 
not  been  for  L,  for  breaking  open  the  granary  of  farmer 
A,  and  stealing  his  bacon.'  The  defendant  is  liable.^ 
Again :  The  defendant  falsely  says  of  the  plaintiff,  '  He 
was  arraigned  at  Warwick  for  stealing  of  twelve  hogs, 
and,  if  he  had  not  made  good  friends,  it  had  gone  hard 
with  him.'  The  defendant  is  liable.^  Again :  The  de- 
fendant falsely  says  of  the  plaintiff,  '  He  is  a  convict,  and 
has  been  in  the  Ohio  penitentiary.'  The  plaintiff  is  enti- 
tled to  maintain  an  action.^ 


§  5.     Of  the  Imputation  op  having  a  Contagious  or 
Infectious  Disease  op  a  Disgraceful  Kind. 

By  the  early  common  law  a  charge  to  come  under  this 
head  must  have  been  of  having  the  leprosy,  or  the  plague, 
or  the  S3^philis.  At  the  present  time  the  duty  has  come 
to  be  so  far  enlarged  as  to  require  the  forbearance  from 
publishing  false  accusations  concerning  another  of  the 
having  any  disease  of  a  contagious  or  infectious  nature 
involving  disgrace.     For  example  :  The  defendant  falsely 

1  Carpenter  v.  Tarrant,  Cas.  Temp.  Hardw.  339.  The  plaintiff  al- 
ways alleges  falsity  of  the  charge,  but  need  not  prove  it. 

2  Halley  v.  Stanton,  Croke  Car.  268. 

8  Smith  V.  Stewart,  5  Barr,  372.  It  would  be  otherwise  if  the 
words  were  true.  Baum  v.  Clause,  5  Hill,  199.  A  person  is  no  longer 
a  felon  after  suffering  the  punishment  of  felony  ;  so  that  the  fact  that 
he  was  once  a  felon  would  not  sustain  a  plea  of  the  truth  of  a  charge  of 
felony.     Leyman  v.  Latimer.  3  Ex.  Div.  352. 


Chap.  V.  §  6.]  SLANDER  AND  LIBEL.  93 

charges  the  plaintiff  with  having  the  gonorrhoea.     This  is 
actionable  per  se.^ 

This  doctrine  of  law  proceeds  upon  the  ground  that 
charges  of  such  a  kind  tend  to  exclude  a  person  from  so- 
ciety ;  and  the  rule  requires  the  charge  to  be  made  in  the 
present  tense.  To  accuse  another  falsely  of  having  had 
a  disgraceful  disease  is  not  actionable  without  proof  of 
special  damage.  For  example  :  The  defendant  says  of 
the  plaintiff,  '  She  has  had  the  pox.'  The  defendant  is 
not  liable  though  the  charge  be  false,  unless  the  plaintiff 
prove  special  damage.^ 

§  6.     Of  AN  Imputation  affecting  the  Plaintiff  in  his 
Office,  Business,  or  Occupation. 

In  order  that  defamation  arising  under  this  head  alone 
should  be  actionable  per  se,  it  should  have  a  natural  ten- 
dency to  injure  the  party  complaining,  in  his  occupation. 
It  is  not  enough  that  it  may  possibly  so  injure  him.  If  it 
has  not  a  natural  tendency  to  injure  him  in  this  respect, 
that  is,  if  it  would  not  be  the  usual  effect  of  the  charge  to 
injure  the  plaintiff  in  his  occupation,  as  by  causing  dis- 
charge, the  plaintiff  cannot  recover  without  proving  special 
damage.  For  example  :  The  defendant  publishes  of  the 
plaintiff,  a  clerk  to  a  gas-light  company,  the  words,  '  You 
are  a  disgrace  to  the  town,  unfit  to  hold  your  situation 
for  your  conduct  with  harlots.  You  are  a  disgrace  to  the 
situation  you  hold.'  The  plaintiff  cannot  recover  without 
proof  of  actual  damage,  the  language  not  having  a  natu- 
ral tendency  to  cause  the  plaintiff's  discharge  from  his 
employment.* 

1  Watson  V.  McCarthy,  2  Kelly,  57.  See  Bloodworth  v.  Gray,  7 
Man.  &  G.  334. 

2  See  Carslake  v.  Mapledoram,  2  T.  R.  473  ;  s.  c.  L.  C.  Torts,  84. 
*  Lumby  v.  AUday,  1  Tyrwh.  217  ;  s.  c.  L.  C.  Torts,  87. 


94  LAW  OF  TORTS.  [Part  I 

Defamation  has  a  natural  tendency  to  injure  the  plain- 
tiff in  his  office,  business,  or  occupation,  within  the  mean- 
ing of  the  rule,  when  it  strikes  at  his  qualification  for  the 
performance  of  the  duties  of  his  situation,  or  when  it 
alleges  some  misconduct  or  negligence  in  the  course  of 
transacting  these  duties.^  For  example  :  The  defendant 
charges  the  plaintiff,  a  clergyman,  holding  the  office  of 
pastor  of  a  church,  with  incontinence.  This  is  ground 
of  an  action.^  Again  :  The  defendant  says  of  the  plain- 
tiff, a  lawyer,  the  words  having  relation  to  the  plaintiff's 
professional  qualifications,  '  He  is  a  dunce.'  This  may 
perhaps  be  treated  as  a  breach  of  the  defendant's  legal 
duty  to  the  plaintiff.^ 

When  the  defamation  complained  of  does  not  show  on 
its  face  that  it  was  published  of  the  plaintiff  in  relation 
to  his  occupation,  this  must  be  made  to  appear ;  *  though 
even  then,  as  has  been  stated,  the  defamation  will  not  be 
actionable  unless  it  had  a  natural  tendency  to  injure  the 
plaintiff  in  his  occupation,  in  the  sense  already  explained. 
In  cases,  however,  in  which  the  imputation  is  alleged  to 
have  been  made  of  the  plaintiff  in  his  occupation,  when 
the  same  does  not  have  the  natural  tendency  mentioned, 
it  may  be  shown  by  the  plaintiff  that  the  defamation  was 
published  under  circumstances  which  bring  the  case 
within  the  rule  of  liability.  But  without  such  evidence, 
the  plaintiff  must  fail.  For  example :  The  defendant 
charges  the  plaintiff,  as  a  physician,  with  incontinence. 
This  does  not  imply  disqualification,  or  necessarily  pro- 

1  Id.  ;  Camp  v.  Martin,  23  Conn.  86. 

2  Gallwey  v.  Marshall,  9  Ex.  294. 

8  Peard  v.  Jones,  Croke  Car.  382.  It  is  doubtful  whether  a  court 
would  now  treat  such  a  statement  as  actionable.  To  call  a  lawyer  a 
'cheat'  is  held  actionable.  Rush  v.  Cavenaugh,  2  Barr,  187.  Further 
see  Goodenow  v.  Tappan,  1  Ohio,  60  ;  Doyley  v.  Roberts,  3  Bing.  N.  C. 
835. 

*  Ayre  v.  Craven,  2  Ad.  &  E.  2. 


Chap.  V.  §  6  ]  SLANDER   AND   LIBEL.  95 

fessional  misconduct ;  and,  without  evidence  connecting 
the  imputation  with  the  plaintiff's  professional  conduct, 
he  cannot  recover.^ 

If  the  imputation  in  itself  come  within  the  rule  of  lia- 
bility under  this  head,  it  matters  not  that  it  was  published 
of  a  servant,  even  one  acting  in  a  menial  capacity.  For 
example  :  The  defendant  falsely  speaks  the  following  of 
the  plaintiff,  a  menial  servant,  before  the  latter's  master, 
'  Thou  art  a  cozening  knave,  and  hast  cozened  thy  mas- 
ter of  a  bushel  of  barley.'  The  defendant  is  liable  to 
the  plaintiff.^ 

It  is  probably  actionable  to  impute  disqualification  of  a 
person  holding  a  merely  honorary  or  confidential  office, 
not  of  emolument. 3  It  certainly  is  so  to  impute  to  such  a 
person  misconduct  in  the  office.*  For  example  :  The  de- 
fendant says  of  the  plaintiff,  who  holds  a  public  office  of 
mere  honor,  touching  his  office,  '  You  are  a  rascal,  a  vil- 
lain, and  a  liar.'  This  is  a  breach  of  the  duty  under 
consideration.^ 

In  all  cases  included  under  the  present  section,  it  is 
necessary  that  the  plaintiff  should  have  been  in  the  exer- 
cise of  the  duties  of  the  particular  vocation  at  the  time  of 
the  alleged  publication  of  the  defamation.^  For  example  : 
The  defendant  says  of  the  plaintiff,  who  had  been  a  lessee 
of  tolls  at  the  time  referred  to  by  the  defendant,  '  He 
was  wanted  at  T  ;  he  was  a  defaulter  there.'  The  words 
are  not  actionable  per  se.' 

1  Ayre  v.  Craven,  2  Ad.  &  E.  2. 

2  Seaman  v.  Bigg,  Croke  Car.  480. 
8  Onslow  V.  Home,  3  Wils.  186. 

*  Id. 

^  Aston  V.  Blagrave,  Strange,  617. 

6  Bellamy  v.  Burch,  16  M.  &  W.  590  ;  Gallwey  v.  Marshall,  9  Ex. 
294. 

''  Bellamy  v.  Burch,  supra.  Some  of  the  old  eases  are  contra,  but 
they  were  overruled. 


9Q  LAW  OF  TORTS.  [Part  I. 


§  7.     Of  an  Imputation  tending  to  Disinherit 
THE  Plaintiff. 

If  the  words  tend  to  impeach  a.  present  title  of  the 
plaintiff,  the  action,  though  commonly  called  an  action 
for  slander  of  title,  is  not  properly  speaking  an  action 
of  slander ;  as  has  already  been  stated,  such  a  case  is 
in  substance  an  action  for  deceit,  to  be  governed  by  the 
rules  of  law  prevailing  upon  that  subject.^ 

Cases  of  actions  for  defamation  tending  to  defeat  an 
expected  title  are  rare,  and  appear  to  have  been  confined 
to  charges  impeaching  the  legitimacy  of  birth  of  an  heir 
apparent.  Such  an  imputation  has  been  deemed  action- 
able, as  being  likely  to  cause  the  plaintiff's  disherison. 
For  example:  The  defendant  publishes  of  the  plaintiff, 
an  heir  apparent  to  estates,  the  words,  '  Thou  art  a  bas- 
tard.' The  defendant  is  liable  without  proof  of  special 
damage.^ 

§  8.    Of  an  Imputation  conveyed  by  Writing,  Printing, 
OR  Figure  ;  that  is,  of  Libel. 

The  four  preceding  sections  exhaust  the  possible  heads 
of  oral  defamation,  actionable  per  se ;  that  is,  of  slan- 
der. Libellous  defamation  may  also  be  conveyed  in  any 
of  the  four  ways  above  considered  ;  but  it  may  also  be 
conveyed  in  other  ways.  A  libel  is  a  writing,  print, 
picture  or  effigy,  calculated  to  bring  one  into  hatred, 
ridicule,  or  disgrace. 

The  definition  shows  that  the  law  of  libel  is  of  wider 
extent  than  that  of  slander.  Many  words  when  written 
or  printed  become  actionable  per  se  which,  if  they  had 

1  See  ante,  p.  49. 

2  Humphrys  v.  Stanfeild,  Croke  Oar.  469. 


Chap.  V.  §  S.]  SLANDER   AND   LIBEL.  07 

been  orally  published,  would  not  have  been  actionable 
without  proof  of  special  damage.  And,  besides  these, 
there  is  the  whole  class  of  defamatory  representations, 
such  as  picture  and  effigy,  which  in  their  nature  are 
incapable  of  oral  publication.  AVhetlier  the  distinction 
is  well  founded  or  not,  the  manner  of  the  publication, 
as  libel,  makes  it  actionable.^  For  example  :  The  de- 
fendant writes  and  publishes  of  the  plaintiff  the  follow- 
ing :  '  I  sincerely  pity  the  man  that  can  so  far  forget 
what  is  due  not  only  to  himself,  but  to  others,  who, 
under  the  cloak  of  religious  and  spiritual  reform,  hypo- 
critically, and  with  the  grossest  impurity,  deals  out  his 
malice,  uncharitableness,  and  falsehoods.'  The  plaintiff 
can  maintain  an  action  for  libel. ^  Again  :  The  defend- 
ant prints  the  following  of  the  plaintiff :  '  Our  army 
swore  terribly  in  Flanders,  said  Uncle  Toby  ;  and  if  Toby 
was  here  now,  he  might  say  the  same  of  some  modern 
swearers.  The  man  at  the  sign  of  the  Bible  [the  plaintiff] 
is  no  slouch  at  swearing  to  an  old  story.'  The  impu- 
tation is  libellous,  though  not  importing  perjury.^  Again  : 
The  defendant  prints  the  following  of  the  plaintiff :  '  Mr. 
Cooper  [the  plaintiff]  will  have  to  bring  his  action  to 
trial  somewhere.  He  will  not  like  to  bring  it  in  New 
York,  for  we  are  known  here,  nor  in  Otsego,  for  he  is 
known  there.'  The  publication  of  this  language  is 
deemed  libellous.* 

At  common  law,  no  immunity  is  conferred  upon  the 
proprietors,  publishers,  or  editors  of  books,  newspapers, 
or  other  prints,  for  the  publication  of  defamation.  They 
are  liable  for  the  publication  of  libellous  matter  in  their 
prints,  though  the  publication  may  have  been  made  with- 

1  Thorley  v.  Kerry,  4  Taunt.  355  ;  s.  c.  L.  C.  Torts,  90. 

2  Thorley  v.  Kerry,  supra. 

3  Steele  v.  Southwick,  9  Johns.  214. 
*  Cooper  i\  Greeley,  1  Denio,  347. 

7 


98  LAW  OF  TORTS.  [Part  L 

out  their  knowledge  or  even  against  their  orders.  This 
is  not  true  of  news-vendors.^  And  it  is  held  that  if  the 
alleged  libel  were  of  such  a  nature  that  a  man  of  common 
intelligence  could  not  know  that  it  was  intended  for  a 
libel,  and  it  was  not  in  fact  known  that  it  was,  neither 
the  editor  nor  the  proprietor  of  the  printing  establishment, 
or  of  the  print,  would  be  liable.^ 

Upon  the  whole  subject  of  newspaper  libel  the  student 
must  beware  of  local  statutes ;  these  cannot  be  consid- 
ered in  this  book. 


§  9.     Of  the  Truth  of  the  Charge. 

The  truth  of  the  charge,  whether  it  was  made  orally 
or  by  printed  or  written  language,  is,  in  the  absence  of 
statute,^  a  good  defence  to  an  action  for  damages  for 
the  publication  of  alleged  defamation,  though  malicious 
and  not  reasonably  believed  to  be  true.  Evidence  of 
such  a  fact  shows,  indeed,  that  the  charge  is  not  legally 
defamatory.  A  person  has  no  right  to  a  false  char- 
acter ;  and  his  real  character  suffers  no  damage,  such  at 
least  as  the  law  recognizes,  from  speaking  the  truth. 

This  rule  appears  to  go  to  the  extent  of  justifying  a 
party  in  publisliing  of  another  the  fact  that  he  has  suf- 
fered the  penalty  of  the  law  for  the  commission  of  crime, 
even  though  he  may  have  been  pardoned  therefor  and 
have  since  become  a  good  and  respectable  citizen.  For 
example  :  The  defendant  publishes  of  the  plaintiff  the 
statement  that  the  latter  had  several  years  ago  stolen  an 
axe.     That  is  true,  though,  after  conviction  thereof,  the 

1  Emmons  v.  Pottle,  16  Q.  B.  Div.  354. 

2  Smith  V.  Ashley,  11  Met.  367. 

8  There  are  statutes  upon  the  subject  in  some  of  the  States,  proba- 
bly in  most  of  the  States  as  to  criminal  prosecutions  for  libel. 


Chap.  V.  §  10.]  SLANDER  AND  LIBEL.  99 

plaintiff  was  pardoned,  and  has  since  become  a  trusted 
citizen  and  an  ollice-liolder.  The  accusation  is  deemed 
justifiable  in  law.^ 

Belief  in  the  truth  of  the  accusation,  however,  is  not  a 
defence,^  though  the  law  allows  the  defendant  to  show 
it  in  mitigation  of  damages.^  And  this  is  equally  true 
of  the  editors  and  publishers  of  books,  newspapers,  or 
periodicals,  as  of  other  persons.* 

The  truth  of  effigy,  picture,  or  sign,  so  far  as  such  may 
relate  to  the  physical  person  of  the  party  intended,  and 
not  to  his  character,  is  (probably)  no  justification  of  a 
malicious  publication.  A  man  is  not  responsible  for  his 
physical  peculiarities,  and  may  well  invoke  the  protection 
of  the  courts  against  one  who  will  parade  them  before  the 
public. 

§   10.     Of  Malice  and  Privileged  Communications. 

To  constitute  slander  or  libel,  it  used  to  be  said  that 
malice  was  necessary  ;  but  malice  in  this  connection  was, 
and  still  is  sometimes,  spoken  of  as  of  two  kinds,  malice 
in  law  and  malice  in  fact,  the  first  being  presumptive, 
the  second  actual.^  The  real  truth,  however,  is  that  the 
plaintiff  is  entitled  to  recover  upon  proof  of  the  publica- 
tion (with  special  damage  if  the  case  does  not  fall  under 
one  of  the  five  heads)  ;  actual  malice  is  not  necessary  to 

1  Baiim  V.  Clause,  5  Hill,  199.  See  Rex  v.  Burdett,  4  B.  &  Aid. 
314,  325. 

2  Campbell  v.  Spottiswoode,  3  Best  &  S.  769. 

3  Odgers,  Slander,  302,  589. 

*  Campbell  v.  Spottiswoode,  supra. 

^  In  regard  to  actual  malice  see  Mogul  Steamship  Co.  v.  McGregor, 
23  Q.  B.  Div.  598,  612  et  seq.  ;  Abrath  v.  North  Eastern  Ry.  Co.  11 
App.  Cas.  247,  251  ;  ante,  pp.  70,  71  ;  Holmes,  Common  Law,  chap- 
ter 4.     Malice  in  law  is  a  pure  fiction. 


100  LAW  OF  TORTS.  ^Part  I. 

make  a  case.  If,  still,  it  is  thought  important  for  any  pur- 
pose to  retain  the  old  form  of  statement,  it  may  be  said 
that  malice  is  presumed  in  all  cases  of  legal  slander  or 
libel ;  but  the  effect  of  the  presumption  may  be  avoide<:l 
by  proof  of  privilege,  and  then  the  plaintiff  can  recover 
only  upon  proof  of  actual  malice.  The  effect  of  the  pre- 
sumption of  the  older  cases  may  be  thus  stated :  The 
publication  of  defamation  is  presumed  to  have  been  done 
of  malice,  and  justifies  a  verdict  for  the  person  defamed, 
without  further  proof.  For  example :  The  defendant 
goes  to  the  plaintiff's  relatives  and  falsely  charges  him 
with  theft.  This  is  sufficient  to  justify  a  verdict  for  the 
plaintiff ;  he  need  not  offer  evidence  to  establish  malice.^ 

If  this  were  all,  the  result  would  be  that,  unless  the 
defendant  could  prove  the  truth  of  the  charge,  he  would 
be  liable.  But  this  would  be  to  lay  an  embargo  upon  the 
freedom  of  speech  hardly  to  be  tolerated.  There  are  cir- 
cumstances under  which  men  must  be  permitted  to  speak 
without  danger  their  convictions,  however  erroneous  ;  the 
law  could  not  but  permit  it,  and  does  permit  it.^  In  per- 
mitting, there  is  no  denial  of  malice  ;  there  is  no  malice, 
as  has  just  been  said,  to  deny.  The  plaintiff's  case 
has  merely  been  avoided  by  matter  of  justification  ;  the 
facts  are  admitted,  but  ground  is  shown  why  the  plaintiff 
should  not  avail  himself  of  them. 

There  are,  in  a  word,  occasions  in  which  certain  per- 

1  Hooper  v.  Truscott,  2  Ring.  N.  C.  457  ;  s.  c.  2  Scott,  672. 

•^  The  doctrine  of  privileged  communications  is  only  a  special  exam- 
ple of  a  great  law  of  privilege  pertaining  to  human  affairs  generally  ;  to 
wit,  the  right  to  inflict  harm  upon  another  in  just  so  far  as  may  reason- 
ably be  deemed  necessary  for  one's  own  protection,  or  for  the  protection 
of  another,  where  that  is  proper.  So  far  others  must  yield,  or  the  vin- 
dication of  rights  in  many  cases  would  be  an  empty  name  ;  but  further 
no  one  is  required  to  give  wny. 


Chap.  V.  §  10.]  SLANDER   AND   LIBEL.  101 

sons  ^  are  excused  for  publishing  what  would  otherwise  be 
actionable  defamation.  The  publication  of  the  charge  in 
such  cases  is  in  legal  language  said  to  be  privileged  ; 
the  charge  itself  being  termed  a  privileged  commu- 
nication. 

Privileged  communications  are  of  two  kinds  ;  absolutely 
privileged  and  prima  facie  privileged  communications.^ 
A  communication  is  absolutely  privileged  when  the  fact 
that  it  was  published  with  actual,  provable  malice,  that 
is,  malice  in  fact,  is  immaterial,  not  affecting  the  excuse. 
In  other  w^ords,  a  communication  is  absolutely  privileged 
when  evidence  that  it  was  published  with  actual  malice 
is  not  admissible.  A  communication  is  prima  facie 
privileged  when  evidence  on  the  part  of  the  plaintiff  is 
admissible  to  show  that  the  communication  was  published 
with  actual  malice.  In  the  former  case,  the  defence  is  a 
perfect  one  and  cannot  be  disturbed  ;  in  the  latter  it  is 
perfect,  provided  evidence  of  malice  be  not  offered  by 
the  plaintiff. 

Under  the  head  of  absolutely  privileged  communica- 
tions, there  are  several  classes  of  cases.  First  of  these 
in  importance  come  statements  made  in  the  course  of  ju- 
dicial pi'oceedings.  Whatever  is  said  orally,  or  stated  in 
writing,  in  the  course  of,  and  duly  relating  to,  such  pro- 
ceedings by  those  concerned  therein,  is  absolutely  privi- 
leged ;  this  in  the  interest  of  the  administration  of  justice. 
According  to  recent  English  authority,  it  matters  not 
whether  tlie  language  was  material  or  relevant,  or  not ;  it 
is  deemed  to  be  against  public  policy  to  permit  any  in- 
quiry in  regard  to  that.^     It  is  enough  if  it  relates  to  the 

1  Merivale  r.  Carson,  20  Q.  B.  Div.  275,  280,  Lord  Esher  pointing 
out  that  what  all  men  may  do  is  no  privilege. 

2  Hastings  v.  Lusk,  22  Wend.  410  ;  s.  c.  L.  C.  Torts,  T21  ;  Shelfer 
V.  Gooding,  2  Jones,  175. 

8  Munster  v.  Lamb,  11  Q.  B.  Div.  588  (counsel)  ;  Scott  v.  Stans- 


102  LAW  OF  TOKTS.  [Part  I. 

cause  before  the  court.  For  example :  Counsel  for  the 
defendant,  in  the  course  of  arguing  a  criminal  cause, 
makes  base  insinuations  against  the  prosecutor  in  rela- 
tion to  the  evidence  given,  which  insinuations  would  be 
actionable  if  not  privileged.  No  action  can  be  maintained 
for  making  them  ;  no  inquiry  into  their  bearing  upon  the 
case  will  be  allowed.^  Again :  A  witness  on  the  stand, 
after  examination,  volunteers  a  statement  in  vindication 
of  himself,  which  contains  a  charge  of  crime  against  a 
stranger  to  the  trial.     This  is  not  actionable.^ 

Formerly  relevancy  appears  to  have  been  regarded  in 
England ;  ^  and  in  this  country  it  is  generally  laid  down 
that  the  language  used,  in  order  to  be  absolutely  privi- 
leged, must  either  have  been  legally  relevant  or  must  have 
been  believed  to  be  relevant.  This  has  been  laid  down  of 
the  language  of  parties,^  of  counsel,^  of  witnesses,*'  of  jury- 
men,'' and  of  pleadings.®     For  example :  The  defendant, 

field,  L.  R.  3  Ex.  220  (judge)  ;  Seaman  v.  Netherclift,  2  C.  P.  Div.  53 
(witness) ;  Henderson  v.  Bioomhead,  4  H.  &  N.  569  (statements  in 
pleadings). 

1  Munster  v.  Lamb,  11  Q.  B.  Div.  588. 

2  Seaman  v.  Netherclift,  supra. 

3  Hoar  V.  Wood,  3  Met.  193,  198  ;  Hastings  v.  Lusk,  22  Wend. 
410  ;  s.  c.  L.  C.  Torts,  121,  125-127  ;  Hodgson?;.  Scarlett,  IB.  &  Aid. 
232. 

*  Hoar  V.  Wood,  supra. 

5  Hastings  v.  Lusk,  supra  ;  MarsTi  v.  Ellsworth,  50  N.  Y.  309  ; 
Hoar  ';.  M''ood,  supra  ;  McLaughlin  v.  Cowley,  127  Mass.  316,  319  ; 
Eice  V.  Coolidge,  121  Mass.  393;  Jennings  v.  Paine,  4  Wis.  358; 
Morgan  v.  Booth,  13  Bush,  480. 

6  White  V.  Carroll,  42  N.  Y.  161  ;  Barnes  v.  McCrate,  32  Maine, 
442  ;  Calkins  v.  Sumner,  13  Wis.  193  ;  Lea  v.  White,  4  Sneed,  111  ; 
Storey  v.  Wallace,  60  111.  51  ;  McLaughlin  v.  Cowley,  supra;  Rice  v. 
Coolidge,  supra, 

f  Dunham  v.  Powers,  42  Vt.  1. 

8  McLaughlin  v.  Cowlej',  supra  ;  Wyatt  v.  Buell,  47  Cal.  624  ; 
Garr  v.  Selden,  4  Conist.  91  ;  Johnson  v.  Brown,  13  W.  Va.  71. 


Chap.  V.  §  10.]  SLANDER   AND   LIBEL.  103 

ill  the  argument  of  his  own  cause  in  court,  falsely  charges 
perjury  upon  the  plaintiff,  the  charge  not  being  relevant,  or 
believed  by  the  defendant  to  be  relevant,  to  any  question 
before  the  court.  The  defendant  is  liable.^  Again  :  The 
defendant,  during  the  deliberations  of  a  jury  of  which  he 
is  a  member,  held  in  the  jury  room,  concerning  their  ver- 
dict in  a  suit  brought  by  the  present  plaintiff,  says  he  would 
not  believe  the  plaintiff  under  oath,  and  accuses  him  of 
having  obtained  an  insurance  upon  property  by  fraud  and 
afterwards  committing  perjury  in  a  suit  for  the  insurance 
money.  This  is  not  legally  relevant,  but  the  defendant 
acts  honestly  believing  it  to  be  so  and  that  he  is  discharg- 
ing his  duty  in  the  matter.    The  plaintiff  cannot  recover.^ 

The  protection  extends  to  the  allegations  contained  in 
affidavits  made  in  the  course  of  a  trial, '^  even  though  the 
persons  making  them  be  not  parties  to  the  cause  ;  *  and  to 
statements  of  a  coroner  holding  an  inquest.^  In  a  word, 
it  applies  apparently  to  all  statements  made  in  the  real 
discharge  of  duty  at  court. ^ 

The  law  upon  this  subject  has  been  thus  (in  substance) 
generalized :  No  action  either  for  slander  or  libel  can  be 
maintained  against  a  judge,  magistrate,  or  person  sitting 
in  a  judicial  capacity  over  any  court,  judicial,  military,'' 
or  naval,  recognized  by  and  constituted  according  to  law  ; 
nor  against  suitors,  prosecutors,  witnesses,  counsel,  or 
jurors,  for  anything  said  or  done  relative  to  the  matter  in 
hand,  in  the  ordinary  course  of  a  judicial  proceeding,  in- 

1  Hastings  v.  Lusk,  22  Wend.  410  ;  s.  c.  L.  C.  Torts,  121. 

2  Dunham  v.  Powers,  42  Vt  1. 
8  Garr  v.  Selden,  4  Comst.  91. 

*  Henderson  v.  Broomhead,  4  H.  &  N.  569. 

5  Thomas  v.  Chnrton,  2  Best  &  S.  475. 

6  Goodenow  v.  Tappan,  1  Ohio,  60  ;  Dunham  v.  Powers,  supra. 

T  Jekyll  V.  Jloore,  2  Bos.  &  P.  N.  R.  341  ;  Dawkins  v.  Rokeby,  L.  R. 
8  Q.  B.  255  ;  h.  c.  7  H.  L.  744,  752  (witness)  ;  Dawkins  v.  Saxe- 
Weimar,  1  Q.  B.  D.  499. 


104  LAW   OF  TORTS.  [Part  I. 

vestigation,  or  inquiry,  civil  or  criminal,  by  or  before  any 
such  tribunal,  however  false  and  malicious  it  may  be.^ 

A  like  rule  of  law  to  that  by  which  defamatory  state- 
ments  made  in  the  course  of  judicial  proceedings  are 
privileged  governs  all  statements  and  publications  made 
in  the  course  of  the  proceedings  of  the  Legislature.'^  The 
occasion  is  deemed  to  afford  an  absolute  justification  for 
the  use  of  language  otherwise  actionable,  so  long  as  it  re- 
lates to  the  proceedings  under  consideration.  No  member 
of  the  Legislature  is  liable  in  a  court  of  justice  for  any- 
thing said  by  hiin  in  the  transaction  of  the  business  of  the 
House  to  which  he  belongs,  or  in  which  he  has  duties  to 
perform,  however  offensive  the  same  may  be  to  the  feel- 
ings or  injurious  to  the  reputation  of  another.^ 

This  privilege,  however,  is  absolute  only  within  the 
walls  of  the  House,  or  of  such  other  places  as  committees 
are  authorized  to  occupy.*  It  is  not  personal,  but  local. 
A  member  who  publishes  slander  or  libel  generally,  out- 
side of  such  locality,  stands,  it  seems,  on  the  same  foot- 
ing with  a  private  individual.^  For  example  :  A  member 
of  Parliament  prints  and  circulates  generally  a  speech 
delivered  by  him  in  the  House,  containing  defamatory 
language  of  the  plaintiff.     This  is  a  breach  of  duty.® 

1  Starkie,  Slander  and  Libel,  184  {4tli  ed.  by  Folkard)  ;  Munster  v. 
Lamb,  11  Q.  B.  Div.  588,  and  cases  cited. 

2  Odgers,  Slander,  187. 

3  See  Ex  parte  Wason,  L.  K.  4  Q.  B.  573  ;  Commonwealth  v.  Bland- 
ing,  3  Pick.  304,  314;  CofRn  v.  Coffin,  4  Mass.  1,  a  very  important 
ease  ;  Hastings  v.  Lusk,  22  Wend.  410,  417  ;  s.  c.  L.  C.  Torts,  121, 
124. 

*  Goffin  V.  Donnelly,  6  Q.  B.  D.  307.  See  Belo  v.  Wren,  63  Texas, 
686,  irregular  and  irresponsible  committee. 

^  See  however  Coffin  v.  CofRn,  snpra,  as  to  words  not  in  the  course 
of  business. 

6  Rex  V.  Abingdon,  1  Esp.  226  ;  Rex  v.  Creevey,  1  Maxde  &  S. 
273  ;  Stockdale  v.  Hansard,  9  Ad.  &  E.  1.     As  to  private  circulation 


Chap.  V.  §  lO.J  SLANDER   AND   LIBEL.  105 

The  same  protection  is  extended  to  persons  presenting 
petitions  to  the  Legislature,  and  with  the  same  restriction. 
The  printing  and  exhibiting  a  false  and  defamatory  peti- 
tion to  a  committee  of  the  Legislature,  and  the  delivery 
of  copies  thereof  to  each  member  of  the  committee,  is 
justifiable,  unless  perhaps  the  petition  is  a  mere  sham, 
fraudulently  put  forth  for  the  purpose  of  defaming  an  in- 
dividual. But  a  publication  to  any  others  than  the  mem- 
bers of  the  committee,  or  at  any  rate  to  others  than 
members  of  the  Legislature,  removes  the  protection,  and 
renders  the  author  liable.^ 

Absolute  privilege  extends  also,  no  doubt,  to  the  acts 
and  proceedings  of  the  Executive  Department,  whether  of 
the  general  government  of  the  country  or  of  the  States.^ 

The  occasions  above  presented  are  the  only  ones  in 
which  the  publication  of  defamation  is  absolutely  justi- 
fied. The  occasions  which  afford  a  prima  facie  protection 
to  defamatory  publications  must  now  be  considered.  The 
defendant  here  shows  privilege  as  before ;  but  now,  it 
should  be  noticed,  the  plaintiff  may  in  turn  show  (actual) 
malice.  This  head  embraces  a  great  variety  of  cases,  the 
most  important  of  which  will  now  he  presented.  And 
from  these  a  general  rule  will  be  deduced. 

Proceedings  before  church  organizations,  societies,  and 
clubs,  for  the  discipline  of  their  members,  partake  some- 
what of  the  nature  of  trials  in  the  courts,  and  may  there- 
fore be  mentioned  first.  Though  forming  no  part  of  the 
general  administration,  of  justice,  such  proceedings,  when 

of  speeches  among  constituents,  see  Wason  v.  "Walter,  L.  R.   4  Q.  B. 
73,  95. 

1  Lake  v.  King,  1  Saund.  131  b,  where  this  is  conceded  ;  Hare  v. 
Miller,  3  Leon.  138,  lfi3.  See  Proctor  v.  Webster,  16  Q.  B.  D.  112,  as 
to  coinnuinications  to  the  Privy  Council. 

2  Comp.  Odgers,  Slander,  194. 


106  LAW  OF  TOETS.  [Part  t 

not  in  conflict  witli  the  law,  are  sanctioned  by  the  State. 
Accordingly,  language  used  in  conducting  them  is  privi- 
leged, prima  facie,  so  far  as  it  has  pertinency  to  the  mat- 
ter under  consideration.  For  example  :  The  defendant, 
while  on  trial  before  a  churcli  committee  for  alleged  false- 
hood and  dishonesty  in  business,  says  of  the  plaintiff,  '  I 
discharged  him  for  being  dishonest,  —  for  stealing.  That 
is  the  cause  of  this  trouble.'  The  defendant  is  not  liable 
in  the  absence  of  evidence  that  he  was  actuated  by  express 
malice.^ 

The  proceedings  of  the  courts  of  justice  should,  with 
some  necessary  exceptions,  be  under  the  eyes  of  the  pub  ■ 
lie,  so  that  judges  may  sufficiently  feel  their  responsibility.^ 
But  the  whole  public  cannot  attend  the  courts,  and  it  is 
proper  therefore  tliat  such  of  their  proceedings  as  are 
open  should  be  made  known  generally.  It  is  accordingly 
laid  down  that  the  publication  of  proceedings  had  in  open 
court,  if  sufficiently  full  to  give  a  correct  and  just  impres- 
sion of  the  proceedings,  and  if  not  attended  with  defama- 
tory comments,  is  prima  facie  privileged.^  If,  however, 
the  same  should  be  so  incomplete  or  so  stated  as  to  give 
a  wrong  impression,  or,  though  full,  if  it  is  followed  by 
comments  containing  defamatory  matter,  the  privilege 
would  fail,  and  the  publisher,  editor,  and  author  would 
be  liable  for  any  defamation  thereby  spread.  For  exam- 
ple :  The  defendant  prints  a  short  summary  of  the  facts 
of  a  cei'tain  case  in  which  the  plaintiff  has  acted  as  attor- 
ney. The  account  of  the  trial  states  that  the  then  defend- 
ant's counsel  was  extremely  severe  and  amusing  at  the 

1  York  V.  Pease,  2  Gray,  282  ;  Farnsworth  v.  Storrs,  5  Cush.  412. 
See  Holt  v.  Parsons,  23  Texas,  9.  Probably  the  language  need  not  be 
legally  relevant. 

2  Cowley  V.  Pulsifer,  137  Mass.  392. 

3  See  Stevens  v.  Sampson,  5  Ex.  Div.  53,  as  to  reports  furnished  by 
one  not  connected  with  the  newspaper. 


Chap.  V.  §10.]  SLANDER  AND  LIBEL.  107 

expense  of  the  present  plaintiff.  It  then  sets  out  parts  of 
the  speech  of  the  defendant's  counsel  which  contain  some 
severe  reflections  on  the  conduct  of  the  plaintiff  as  attor- 
ney in  that  action.     The  defendant  is  liable.^ 

But  it  should  be  clearly  understood  that  the  publication 
of  an  abridged  report  of  a  trial  is  privileged  if  it  be  fair 
and  accurate  in  substance,  so  as  to  convey  a  just  impression 
of  what  took  place,  and  be  free  from  objectionable  com- 
ments ;  '^  and  so  of  the  publication  of  proceedings  in  the 
Legislature.^  It  is  laid  down,  however,  that  this  privilege 
does  not  extend  to  the  publication  of  papers  in  a  cause 
before  any  proceedings  have  been  taken  upon  them,  as  in 
the  case  of  papers  filed  and  published  in  vacation.'*  This 
would  not  be  publishing  a  proceeding  had  in  open  court. ^ 
Reports  from  day  to  day,  in  the  progress  of  a  trial,  may 
be  publislied ;  ^  and  the  report  of  a  judgment  alone, 
especially  if  sufficient  to  give  a  just  idea  of  the  case, 
may  be  published.'^ 

The  objection  to  defamatory  comments  applies  equally 
well  when  they  are  put  into  the  form  of  a  heading  to  the 
report.  For  example :  The  defendant  prints  an  account 
of  a  trial  in  which  the  plaintiff  was  involved,  heading  the 
same  '  Shameful  conduct  of  an  attorney,'  referring  to  the 
plaintiff.     The  publication  is  not  privileged.^ 

1  Flint  V.  Pike,  4  B.  &  C.  473. 

2  Turner  v.  Sullivan,  6  Law  T.  N.  s.  130  ;  "Wason  v.  Walter,  L.  R. 
4  Q.  B.  73,  87. 

3  Wason  V.  Walter,  supra.  Contra  of  matters  not  fit  for  publica- 
tion.    Steele  v.  Brannan,  L.  R.  7  C.  P.  261. 

4  Cowley  V.  Pulsifer,  137  Mass.  392.  ^  i^].  p.  394^  Holmes,  J. 
6  Lewis  V.  Levy,  El.  B.  &  E.  537  ;  Cowley  v.  Pulsifer,   137  Mass. 

392,  395. 

^  Macdougall  v.  Knight,  17  Q.  B.  Div.  636  ;  14  App.  Cas.  194,  200. 
See  this  case  again,  25  Q.  B.  Div.  1,  denying  the  ({ualification  sug- 
gested in  the  House  of  Lords,  14  App.  Cas.  at  pp.  200,  203. 

8  Lewis  V.  Clement,  3  Barn.  &  Aid.  702. 


108  LAW  OF  TORTS.  [Part  I. 

The  editor  or  writer  may,  however,  use  a  heading  prop- 
erly indicative  of  the  nature  of  the  trial,  if  it  does  not 
amount  to  comment.  That  is,  the  subject  of  the  trial 
may  be  stated.  For  example:  The  defendant  prints  a 
report  of  a  trial  under  the  heading  '  Wilful  and  corrupt 
perjury.'  But  this  is  only  a  statement  of  the  charge  made 
against  the  plaintiff  at  the  trial.  There  is  no  breach  of 
duty  to  the  plaintiff.^ 

The  privilege  appears  to  extend  in  England  to  the  pub- 
lication of  ex  parte  judicial  proceedings  ;  ^  it  protects  the 
publication  alike  of  preliminary  and  final  proceedings  in 
open  court ;  and  this  though  the  tribunal  declines  to  pro- 
ceed for  want  of  jurisdiction.^ 

No  privilege  is  conferred  apart  from  statute  upon  the 
proprietors,  editors,  or  publishers  of  the  public  prints  for 
the  publication  of  defamatory  matter  uttered  in  the  course 
of  public  meetings  though  held  under  authority  of  law  for 
public  purposes.  For  example  :  The  defendant  prints  an 
account  of  a  public  meeting  of  commissioners  of  a  town, 
the  body  acting  under  powers  granted  by  statute  ;  and  the 
report  is  a  fair  and  truthful  statement  of  what  occurred  at 
the  meeting.  It,  however,  contains  defamatory  language 
uttered  concerning  the  plaintiff  at  the  meeting.  The 
defendant  is  liable.* 

It  does  not,  indeed,  make  a  case  of  privilege  that  a 
defamatory  statement  relates  to  a  matter  of  great  interest 
to  the  public,  even  though  the  public  should  be  at  a  point 
of  unusual  anxiety  on  the  subject.  For  example  :  The 
defendant  charges  the  plaintiff  in  a  newspaper  with  treach- 

1  Lewis  V.  Levy,  El.  B.  &  E.  537. 

2  Usill  V.  Hales,  3  C.  P.  D.  319.  Contra,  Cincinnati  Gazette  Co. 
V.  Timberlake,  10  Ohio  St.  548  ;  Matthews  v.  Beach,  5  Sandf.  256. 
See  Belo  v.  Wren,  63  Texas,  686. 

3  Usill  V.  Hales,  supra  ;  Lewis  v.  Levy,  supra. 

4  Davison  v.  Duncan.  7  El.  &  B.  229. 


Chap.  V.  §  10.]  SLANDER   AND   LIBEL.  109 

ery  and  bad  faith  in  regard  to  money  received  by  him  to 
obtain  the  manumission  of  a  fugitive  slave  in  whom  there 
was  great  interest  in  the  community.  The  publication  is 
not  privileged.^ 

It  is  obviously  to  the  advantage  of  the  public  that  true 
accounts  of  the  proceedings  of  the  Legislature  should  be 
placed  before  the  people.  Upon  this  principle,  therefore, 
the  publication  of  such  proceedings  by  any  one  is  privi- 
leged, though  they  contain  defamatory  matter;  though 
the  privilege  of  non-official  publication,  as  in  the  other 
cases  mentioned,  will  not  cover  malicious  publications. 
Without  evidence  of  malice,  however,  the  protection  is 
complete.  For  example  :  The  defendant  publishes  a  true 
report  of  a  debate  in  Parliament,  upon  a  petition  pre- 
sented by  the  plaintiff  for  the  impeachment  of  a  judge. 
Defamatory  statements  against  the  plaintiff  are  made  in 
the  course  of  the  debate,  and  these  are  published  with 
the  report.  The  defendant  is  not  liable  in  the  absence  of 
malice.^ 

Communications  made  to  the  proper  public  authorities, 
upon  occasions  of  seeking  redress  for  wrongs  suffered  or 
threatened,  in  wliich  the  public  are  concerned,  or  in  which 
the  party  making  or  receiving  the  communication  is  alone 
concerned,  are  privileged,  prima  facie,  if  believed  to  be 
true  by  the  party  seeking  redress,  unless  the  form  of  the 
communication  itself  show  malice.  For  example  :  The 
defendant  honestly^  charges  the  plaintiff  with  being  a 
thief,  the  charge  being  made  before  a  constable  acting  as 
such,  after  the  defendant  had  sent  for  him  to  take  the 


1  Sheckell  v.  Jackson,  10  Cush.  25. 

2  Wason  V.  Walter,  L.  R.  4  Q.  B.  73.     The  protection  in  this  case 
was  extended  also  to  comments  made  in  an  honest  and  fair  spirit. 

8  '  Honestly  '  and  •  honest '  will  now  be  used  of  belief  that  an  impu- 
tation is  true. 


ilO  LAW   OF   TORTS.  [Part  I. 

plaintiff  into  custody.  The  defendant  is  not  liable  in 
the  absence  of  evidence  of  actual  malice.^ 

Upon  the  same  principle,  honest  statements  at  public 
meetings,  as  by  a  taxpayer  and  voter  at  a  town  meeting, 
held  to  consider  an  application  from  the  tax  assessors  of 
the  town  for  the  use  of  money  for  a  particular  purpose, 
may  be  privileged  so  far  as  they  bear  upon  the  matter 
before  the  meeting,  though  they  be  defamatory.  For 
example  :  The  defendant,  at  a  town  meeting  held  on  ap- 
plication of  the  tax  assessors  to  consider  the  reimbursing 
the  assessors  for  expenses  incurred  in  defending  a  suit 
for  acts  done  in  their  official  capacity,  honestly  but  falsely 
charges  the  assessors  with  perjury  in  the  suit.  Being  a 
taxpayer  and  voter,  he  is  not  liable  to  any  of  the  per- 
sons defamed,  unless  shown  to  have  been  actuated  by 
malice.^ 

A  similar  protection  is  extended  to  persons  acting  under 
the  management  of  bodies  instituted  by  law,  and  having 
a  special  function  of  care  over  the  interests  of  the  public. 
While  honestly  acting  within  the  limits  of  their  function, 
they  are  prima  facie  exempt  from  liability  for  defamatory 
publications  made.  For  example  :  The  defendants,  trus- 
tees of  a  College  of  Pharmacy,  —  an  institution  incorpo- 
rated for  the  purpose,  among  other  things,  of  cultivating 
and  improving  pharmacy,  and  of  making  known  the  best 
methods  of  preparing  medicines,  with  a  view  to  the  public 
welfare,  —  make  a  report  to  tlie  proper  officer  concerning 
the  importation  of  impure  and  adulterated  drugs,  falsely 
but  honestly  charging  the  plaintiff  with  having  made  such 
importations ;  the  report  being  made  after  investigation 
caused  by  complaints  made  to  the  defendants  of  the  im- 
portation of   such  drugs.     The  defendants   are   not  lia- 

1  Robinson  v.  May,  2  Smith,  3. 

2  Smith  V.  Higgins,  16  Gray,  251. 


Chap.  V.  §  10.]        SLANDER   AND   LIBEL.  Ill 

ble  unless  they  acted  with  express  malice  towards  the 
plaintiff.^ 

The  use  of  the  public  prints  is  sometimes  justifiable  to 
protect  a  person  against  the  frauds  or  depredations 
of  a  private  citizen ;  and  when  this  is  the  only  effec- 
tual mode  of  protection,  persons  are  prima  facie  pro- 
tected in  adopting  it  even  against  innocent  men.  For 
example  :  The  defendant,  a  baker,  employing  servants  in 
delivering  bread  in  various  towns,  inserts  in  a  news- 
paper  published  in  one  of  the  towns  a  card,  stating  that 
the  plaintiff  '  having  left  my  employ,  and  taken  upon 
himself  the  privilege  of  collectmg  my  bills,  this  is  to 
give  notice  that  he  has  nothing  further  to  do  with  my 
business.'  The  communication  is  honest.  It  is  privi- 
leged in  the  absence  of  evidence  of  actual  malice.^ 

Statements  made  to  the  public  in  vindication  of  char- 
acter publicly  attacked  are  privileged,  prima  facie,  if 
they  are  honest,  if  made  through  proper  channels.^ 
For  example :  The  defendant  publishes  a  newspaper 
article  containing  reflections  upon  the  plaintiff's  charac- 
ter, in  reply  to  an  article  by  the  plaintiff  assailing  the 
defendant's  character.  The  defendant  acts  honestly,  in 
defence  of  himself.  The  communication  is  prima  facie 
privileged.^ 

Indeed,  it  ma}^  not  affect  the  case  that  the  names  of 
other  men  are  drawn  into  the  controversy  and  tarnished. 
The  party  attacked  may  in  reply  falsely  criminate 
others  if  the  charges  against  them  are  honestly  made, 
are  not  malicious,  and  are  reasonably  deemed  necessary 
for  self-vindication.  And  such  reply  may  be  made  by 
the  party's  agent  as  well  as  by  himself.     For  example : 

1  Van  Wyck  v.  Aspinwall,  17  N.  Y.  190. 

2  Hatch  V.  Lane,  105  Mass.  394. 

3  Laughton  v.  Bishop  of  Sodor,  L.  R.  4  P.  C.  495. 

*  O'Donoghue  v.  Hussey,  Ir.  R.  5  C.  L.  124,  Ex.  Ch. 


112  LAW  OF  TORTS.  [Part  I. 

The  defendant,  an  attorney,  writes  and  publishes  a  letter 
in  vindication  of  the  character  of  one  of  his  clients,  in 
reply  to  certain  charges  of  conspiracy  preferred  and  pub- 
lished against  the  latter.  The  defendant's  letter  contains 
defamatory  charges  against  a  third  person,  the  plaintiff. 
The  defendant  is  not  liable  if  he  made  the  charges  in  rea- 
sonable and  honest  vindication  of  his  client's  character, 
and  without  actual  malice,  using  terms  reasonably  war- 
ranted under  the  circumstances  in  which  he  wrote. ^ 

Communications  by  a  master,  or  late  master,  in  re- 
gard to  the  character  or  conduct  of  his  servant,  made 
to  a  neighbor  or  other  person  who  is  apparently  thinking 
of  employing  the  servant,  fall  within  this  category  of 
cases. ^  For  example  :  The  defendant,  having  discharged 
his  servant  the  plaintiff  for  supposed  misconduct,  and 
hearing  that  he  was  about  to  be  engaged  by  a  neighbor, 
writes  a  letter  to  his  neighbor,  informing  him  that  he 
has  discharged  the  plaintiff  for  dishonesty,  and  that  he 
cannot  recommend  him  ;  the  charge  of  dishonesty  being 
false,  but  believed  by  the  defendant  to  be  true.  The 
defendant  has  a  prima  facie  right  to  make  the  statement.^ 

The  same  is  true  where  there  exists  a  very  near  re- 
lationship, or  a  pecuniary  connection  of  confidence,  be- 
tween the  parties  ;  as  in  the  case  of  a  parent  admonishing 
his  daughter  against  the  attentions  of  a  particular  person, 
who  is  falsely  charged  with  the  commission  of  a  crime  ;  or 
of  a  partner  advising  his  copartner  to  have  no  partnership 
dealing  with  another,  on  the  false  ground,  e.g.  that  he  is 
a  thief. 

1  SeeReginav.  Veley,  4  Fost.  &  F.  1117;  Seaman  v.  Netherclift, 
2C.  P.  Div.  53,  ante,  p.  102;  Wason  v.  Walter,  L.  R.  4  Q.  B.  73, 
ante,  p.  109.  These  three  cases  taken  properly  together  justify  the 
example,  the  facts  in  which  vary  from  Regina  v,  Veley,  in  making 
the  imputation  relate  to  a  third  person. 

2  Billings  V.  Fairbanks,  139  Mass.  66  ;  Pattison  v.  Jones,  8  B.  &  C. 
578.  ^  Pattison  v.  Jones,  supra. 


Chap.  V.  §  10.]  SLANDER   AND  LIBEL.  113 

A  confidential  relation  by  pecuniary  connection  is,  for 
the  purposes  of  this  protection,  much  wider  than  might  be 
supposed  from  the  case  of  partners  last  mentioned.  A 
confidential  relation,  within  the  scope  of  the  protection  to 
voluntary  communications,  (probably)  arises  wherever  a 
continuous  or  temporary  trust  is  reposed  in  the  skill  or 
integrity  of  another,  or  the  property  or  pecuniary  in- 
terest, in  whole  or  in  part,  or  the  bodily  custody,  of  one 
person,  is  placed  in  charge  of  another.^  Besides  the 
cases  above  stated,  this  definition  will  cover  communica- 
tions made  by  an  attorney  to  his  client  concerning  third 
persons  with  whom  the  client  is,  or  is  about  to  be,  en- 
gaged in  business  transactions  ;  ^  communications  made 
to  an  auctioneer  of  property  concerning  the  sale  by  per- 
sons interested  in  the  property  ;  ^  communications  of  land- 
lords to  their  tenants  imputing  immoral  conduct  to  some 
of  the  inmates  of  the  premises  ;*  and  many  other  cases  of 
a  like  nature. 

In  most  of  the  foregoing  cases,  it  will  be  noticed,  the 
communication  was  volunteered,  and  this  of  necessity  ;  if 
made  at  all,  it  must  have  been  volunteered.  That  fact 
accordingly  has  no  bearing  upon  the  question  of  liability. 
Indeed,  the  most  that  can  be  said  of  the  fact  that  a  com- 
munication was  volunteered,  in  a  case  of  privilege,  is 
that  it  may  sometimes  be  taken,  along  with  other  facts, 
as  evidence  of  malice.^  Alone,  however,  it  would  prob- 
ably have  no  significance. 

On  the  other  hand,  a  communication  is  not  necessarily 
privileged  because  of  being  made  upon  request,  though 
very  often  it  is  privileged.     If  it  should  be  unnecessarily 

1  See  1  Bigelow,  Fraud,  262. 

2  See  Davis  v.  Reeves,  5  Ir.  C.  L.  79. 
8  Blackham  v.  Pugh,  2  C.  B.  611. 

4  Knight  V.  Gibbs,  3  Nev.  &  M.  467. 
6  See  Pattison  v.  Jones,  8  B.  &  C.  578,  584,  Bayley,  J. 

8 


114  LAW  OF  TORTS.  [Part  I. 

defamatory  under  the  circumstances,  the  privilege  would 
be  lost.  Such  fact  would,  indeed,  show  that  the  writer 
or  speaker  was  actuated  by  malice,  and  would  thus  destroy 
the  protection  which  may  have  been  available  to  the  party, 
and  restore  to  the  plaintiff  his  right  of  redress.^ 

Again,  a  communication  made  upon  request  is  not  pro- 
tected unless  the  request  come  from  a  proper  person,  or 
at  least  from  one  whom  the  defendant  has  reason  to  sup- 
pose a  proper  person.  If  the  defendant  know,  or  have 
good  reason  to  know,  that  the  party  making  the  inquiry 
has  no  interest  in  the  matter  in  question  other  than  that 
of  curiosity,  the  defendant  manifestly  is  not  justified  in 
making  the  communication.  Even  the  near  relatives  of  a 
person  interested  in  the  subject  of  the  communication 
cannot  by  request  afford  protection  to  every  one  to  pub- 
lish defamation  of  another.  For  example  :  The  defend- 
ant, formerly  but  not  at  present  pastor  of  a  lady,  writes 
a  letter  to  the  lady,  on  request  of  her  parents,  warning 
her  against  receiving  attention  from  a  certain  person,  the 
letter  containing  false  and  defamatory  accusations  against 
him.     The  communication  is  not  privileged.^ 

It  should  be  noticed  that  it  devolves  upon  the  defendant 
to  show,  not  only  the  existence  (at  the  time  or  before) 
of  the  relation  l)etween  the  parties,  but  also  that  he 
acted  in  good  faith,  believing  that  his  communication 
was  true.^    And   this  statement   applies  throughout  the 

1  Fryer  v.  Kinnersley,  15  0.  B.N.  s.  422. 

2  Joannes  v.  Bennett,  5  Allen,  169.  Perhaps  the  communication 
would  have  been  privileged  had  it  come  from  the  lady's  present  pastor  ; 
and  it  clearly  would  have  been  protected  had  it  been  written  on  request 
of  the  lady  herself. 

3  Pattison  v.  Jones,  8  B.  &  C.  578  ;  DaWkins  v.  Paulet,  I..  R.  5  Q.  B. 
94,  102  ;  Clark  v.  Molyneux,  3  Q.  B.  Div.  237 ;  Odgers,  Slander,  199. 
It  is  not  necessary  for  the  defendant  to  show  reasonable  grounds  of  be- 
lief;  belief  is  enough  on  that  point.  Clark  v.  j\Iolyneux,  supra,  at 
pp.  244,  248,  249. 


Chap.  V.  §  10.]  SLANDER   AND   LIBEL.  115 

law  of  prima  facie  privilege.  It  has  already  been  ob- 
served that  the  defeudant's  belief  in  the  truth  of  the 
charge  is  no  defence  in  cases  not  of  privileged  commu- 
nications.-' 

An  aualj^sis  of  the  foregoing  cases  will  show  that  this 
doctrine  of  privilege  rests  upon  interest  or  duty  suitably 
acted  upon,  and  will  justify  the  following  general  propo- 
sition :  A  communication  believed  to  be  true,  and  made 
bona  fide  upon  any  subject-matter  in  which  the  party 
communicating  has  an  interest,  or  in  reference  to  which 
he  has  a  duty  to  perform,  is  privileged,  if  made  to  a  per- 
son having  a  corresponding  interest  or  duty,  although  it 
contains  defamatory  matter,  which,  without  such  privilege, 
■would  be  actionable.'^ 

It  follows  from  this,  that  no  privilege  is  afforded  the 
mere  repetition  of  defamation  ;  and  this  is  true  by  the 
weight  of  authority,  though  the  party  repeating  it  give 
the  name  of  the  person  from  whom  he  received  it.  The 
repetition  of  the  language  is  generally  deemed  actionable 
to  the  same  extent,  and  doubtless  with  the  same  qualifica- 
tions, as  is  the  original  publication.^  For  example  :  The 
defendant  says  to  a  third  person  concerning  the  plaintiff, 
'  You  have  heard  of  the  rumor  of  his  failure,'  —  merely 
repeating  a  current  rumor  that  had  come  to  his  ears  that 
the  plaintiff  had  failed.  The  defendant  is  liable  if  there 
was  no  such  relation  between  him  and  the  party  to  whom 
he  made  the  communication  as  would  cause  the  latter  to 
expect  a  communication  on  such  matters.* 

1  Ante,  p.  99. 

2  Harrison  v.  Bush,  5  El.  &  B.  844  ;  Gassett  v.  Gilbert,  6  Gray,  94  ; 
Joannes  v.  Bennett,  5  Allen,  169. 

3  De  Crespigny  v.  Wellesley,  5  Bing.  392  ;  s.  c.  L.  C.  Torts,  151  ; 
Stevens  v  Hartwell,  11  Met.  542  ;  Sans  v.  Joerris,  14  Wis.  663  ;  In- 
mau  V.  Foster,  8  "Wend.  602.  Contra,  Haynes  v.  Leland,  29  Maine, 
233.  See  also  Jarnigan  v.  Fleming,  43  Miss.  710;  Northampton's 
Case,  12  Coke,  134. 

*  Watkin  v.  Hall,  L.  R.  3  Q.  B.  396. 


11(3  LAW  OF  TORTS.  [Part  T. 

Criticism  cannot  be  defamation,  unless  it  strikes  at  per- 
sonal character.  It  is  protected  therefore,  not  because  it 
is  privileged,  but  because  it  is  not  defamation.^  However 
severe  it  may  be,  however  unjust  in  the  opinion  of  men 
capable  of  judging,  so  long  as  the  critic  confines  himself 
to  what  in  England  is  called  '  fair  criticism  '  of  another's 
works,  the  act  cannot  be  treated  as  a  breach  of  duty. 
But  if  the  critic  turn  aside  from  the  proper  purpose  of 
criticism,  and  hold  up  one's  person  or  character  to  ridicule, 
he  becomes  liable.^ 

The  criticism  of  works  of  art,  whether  painting,  sculp- 
ture, monument,  or  architecture,  falls  within  the  rule. 
For  example:  The  defendant  says  of  a  picture  of  the 
plaintiff,  placed  on  exhibition,  '  It  is  a  mere  daub.'  The 
defendant,  if  fair  in  his  criticism,^  cannot  be  held  liable  to 
an  action  for  defamation,  however  unjust  the  criticism.^ 

The  conduct  too  of  public  men  amenable  to  the  public 
only,  and   of  candidates  for   public   office,  is  a  matter 

1  Merivale  v.  Carson,  20  Q.  B.  Div.  275  ;  Campbell  v.  Spottiswoode, 
3  Best  &  S.  769,  780.  What  all  men  may  do  is  no  privilege,  hut  only 
what  some  men  may.  Id.  This  overrules  Kenwood  v.  Harrison,  L.  R. 
7  C.  P.  606,  626,  where,  as  by  some  of  our  courts,  criticism  is  treated 
as  privileged. 

2  Id.  ;  Carr  v.  Hood,  1  Campb.  355,  note  ;  Strauss  v.  Francis,  4 
Fost.  &  F.  939  and  1107.     See  s.  c.  L.  R.  1  Q.  B.  379. 

3  See  Merivale  v.  Carson,  20  Q.  B.  Div.  275,  280,  283,  as  to  '  fair 
criticism.'  In  England,  the  question  is  directly  put  to  the  jury, 
whether  the  criticism  is  '  fair ; '  which  is  stated  to  mean  whether,  in 
their  opinion,  the  criticism  goes  beyond  what  any  fair  man,  however 
prejudiced  or  strong  his  opinion  may  be,  would  express.  Merivale  v. 
Carson,  at  p.  280.     See  also  id.  at  p.  283. 

4  Thompson  v.  Shackell,  Moody  &  M.  187.  See  Whistler  v.  Eus- 
kin,  London  Times,  Nov.  26,  27,  1878  {unfair  criticism)  ;  Merivale  v. 
Carson,  supra;  Gott  v.  Pulsifer,  122  Mass.  235.  The  recent  case  of 
Dooling  V.  Budget  Pub.  Co.  144  Mass.  258,  turned  upon  a  distinction 
between  criticism  of  the  plaintiff  in  his  business  of  caterer  and  '  slander 
of  title.' 


Chap.  V.  §  lO.J        SLANDER  AND  LIBEL.  117 

proper  for  public  discussion.  It  may  be  made  the  subject 
of  hostile  criticism  and  animadversion,  so  long  as  the 
writer  keeps  within  the  bounds  of  an  honest  intention  to 
discharge  a  duty  to  the  public,  and  does  not  make  the 
occasion  a  mere  cover  for  promulgating  false  and  defam- 
atory allegations.  The  question  in  such  cases  therefore 
is,  whether  the  author  of  the  statements  complained  of 
has  transgressed  the  bounds  within  which  comments  upon 
the  character  or  conduct  of  a  public  man  should  be  con- 
fined ;  —  whether,  instead  of  fair  comment,  the  occasion 
was  made  an  opportunity  for  gratifying  personal  vindic- 
tiveness  and  hostility,^  as  by  making  false  charges  of  dis- 
graceful acts.^  In  a  word,  fair  criticism  or  comment  upon 
the  real  acts  of  a  public  man  is  one  thing ;  it  is  '  quite 
another  to  assert  that  he  has  been  guilty  of  particular  acts 
of  misconduct.'  ^  Criticism  of  public  men  should  be  lim- 
ited to  matters  touching  their  qualifications  for  the  per- 
formance of  the  duties  pertaining  to  the  position  which 
they  hold  or  seek.^ 

If,  however,  an  officer,  or  an  office  sought,  be  not  sub- 
ject to  direct  control  by  the  public,  —  if  the  same  be  sub- 
ordinate to  the  authority  of  some  one  having  a  power  of 
removal  over  the  incumbent,  — then  (probably)  there  ex- 
ists no  right  to  animadvert  upon  the  conduct  of   such 

1  Campbell  v.  Spottiswoode,  3  Best  &  S.  769,  776;  Merivale  v. 
Carson,  20  Q.  B.  Div.  275,  283. 

2  Davis  V.  Shepstone,  11  App.  Gas.  187. 
8  Id.  at  p.  190. 

*  Our  courts  differ  however,  or  appear  to  differ,  as  to  how  far  criti- 
cism of  public  men  may  go.  See  on  the  one  hand,  Hamilton  v.  Eno, 
81  N.  Y,  116  ;  Root  v.  King,  7  Cowen,  613  ;  s.  c.  4  Wend.  113 ;  Sweeney 
V.  Baker,  13  W.  Va.  158  ;  Curtis  v.  Mussey,  6  Gray,  261.  On  the 
other  hand,  see  Palmer  u.  Concord,  48  N.  H.  211  ;  Mott  v.  Dawson, 
46  Iowa,  533.  See  also  Bailey  v.  Kalamazoo  Pub.  Co.  40  Mich.  251. 
But  there  would  probably  be  no  dispute  about  the  proposition  of  the 
text. 


118  LAW   OF   TOKTS.  [Part  I. 

subordinate  officer  or  candidate  through  public  channels. 
For  in  such  a  case  the  question  appears  to  be  one  of 
capacity  or  of  fitness  for  a  particular  position.  Though 
engaged  in  business  of  the  public,  the  officer  is  '  not  a 
public  man'  but  a  servant.  The  proper  course  to  pursue 
in  ease  of  supposed  incapacity  or  unfitness  of  the  party 
for  the  position  would  be  to  state  the  case  to  the  superior 
officer  alone,  and  call  upon  him  to  act  accordingly.-^ 

It  must  be  understood  that  the  law  of  slander  and  libel 
applies  only  to  defamation  in  pais  ;  that  is,  to  defamatory 
charges  not  prosecuted  in  a  court  of  justice.  If  the 
defamation  consist  of  an  accusation  prosecuted  in  court, 
the  accused  must  seek  his  redress  by  an  action  for  a  mali- 
cious prosecution,  in  regard  to  which  the  right  to  recover 
depends,  as  has  been  seen,  upon  quite  different  rules  of 
law.^ 

1  Comp.  Odgers,  223,  224.  2  gge  chapter  ii. 


PART  II. 
BREACH  OF  ABSOLUTE  DUTY. 


CHAPTER  yi. 
ASSAULT   AND  BATTERY. 

§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
(1)  to  attempt  with  force  to  do  hurt  to  his  person,  within 
reach ;  or  (2)  to  hit  or  touch  him  in  anger,  rudeness,  or 
negligence,  or  in  the  commission  of  any  unlawful  act. 

There  is  so  much  in  common  in  the  law  of  the  two 
wrongs  of  assault  and  battery,  and  the  two  are  so  often 
coincident,  that  the  terms  are  frequently  used  without  dis- 
crimination. '  Assault '  is  constantly  used  in  the  books  of 
cases  of  contact,  making  it  include  '  battery,'  ^  But  as- 
sault without  contact  is  a  wrong  equally  with  battery  ; 
and  it  will  be  convenient  and  advisable  to  consider  the 
two  subjects  separately,  however  similar  the  law  in  regard 
to  them. 

§  2.     Of  Assaults  (without  Contact). 

An  assault  (without  contact)  is  an  attempt,  real  ot  ap- 
parent, to  do  hurt  to  another's  person,  within  reach.  It 
is  an  attempt  to  do  bodily  harm,  stopping  short  of  actual 
execution.^     If  the  attempt  be  carried  out  by  physical 

^  See  the  proposed  definition  in  the  English  draft  Criminal  Code 
of  1879;  Pollock,  Torts,  192,  2d  ed. 

2  Words  are  uo  assault ;  but  the}'  may  be  a  menace  and  so  actipn- 
able,  with  proof  of  damage.     L.  C.  Torts,  225-227. 


122  LAW  OF   TORTS.  [Part  II. 

contact,  the  act  becomes  a  battery  ;  but  the  act  is  equally 
unlawful  and  actionable  when  it  stops  with  a  mere  attempt 
to  inflict  hurt.  It  is  not  alone  a  blow  that,  because  of  un- 
permitted contact  with  the  person,  is  unlawful.  The  sen- 
sibility to  danger  may  be  rudely  shocked  ;  and  feelings  of 
that  kind  are  within  the  protection  of  the  law  quite  as 
much  as  the  feeling  produced  by  blows.  It  is  actionable 
for  A  to  shake  his  fist  in  the  face  of  B.^ 

In  ordinary  cases  of  assault,  the  question  whether  the 
defendant  actually  intended  to  do  the  bodily  harm  cannot, 
as  the  definition  implies,  enter  into  the  case.  If  reason- 
able fear  of  present  bodily  harm  has  been  caused  by  the 
threatening  attitude,  the  effect  of  an  assault  has  been  pro- 
duced ;  and  not  even  a  disclaimer  by  the  wrong- doer 
coincident  with  his  act  could,  it  seems,  prevent  liability. 
One  may  well  complain  of  a  man  who  points  a  pistol  at 
one,  though  the  man  truly  declare  that  he  does  not  intend 
to  shoot ;  ^  for  the  ordinary  effect  of  an  assault,  the  put- 
ting one  in  fear,  is  produced.^ 

But  it  may  appear  in  a  particular  case  that  an  expressed 
purpose,  or  want  of  purpose,  is  a  determining  fact  in  solv- 
ing a  doubt ;  that  is,  it  may  be  such  a  part  of  the  act  in 
question  as  to  turn  the  scales  in  deciding  whether  an  as- 
sault has  been  committed.     A  denial  of  present  purpose 

1  Bacon's  Abr.  'Assault  and  Battery,'  A. 

2  See  Reg.  v.  St.  George,  9  Car.  &  P.  483,  493,  Parke,  B  ;  Bacon's 
Abr.  '  Assault  and  Battery,'  A  ;  1  Hawkins,  P.  C.  110  ;  Pollock,  Torts, 
193,  2d  ed.,  doubting  Blake  v.  Barnard,  9  Car.  &  P.  626,  628,  and  Reg. 
V.  James,  1  C.  &  K.  530.  Reg.  v.  St.  George,  ut  supra,  '  would  almost 
certainly  be  followed  at  this  day.'     Pollock,  Torts,  193,  note,  2d  ed. 

3  It  may  not  be  necessary,  however,  to  an  assault  that  this  effect 
should  be  pi'oduced.  A  person  assaulted  may  be  entirely  fearless,  feel- 
ing sure  that  the  blow  will  not  fall.  Again,  one  may  probably  be 
assaulted  in  the  dark  without  knowing  it.  But  the  putting  in  fear  is 
the  ordinary  effect,  and  what  might  well  put  in  fear  is  probably  a  test, 
of  an  assault. 


Chap.  VI.  §  2]       ASSAULT  AND  BATTERY.  123 

to  do  harm,  or  any  language  indicating  a  want  of  such 
purpose,  may  serve,  under  the  circumstances,  to  prevent 
the  excitement  of  any  reasonable  fear  of  present  bodily 
harm.  If  then  it  appear  that  the  supposed  wrong  was 
committed  in  such  a  manner  that  the  plaintiff  must  have 
known  that  no  present  violence  was  intended,  the  act  is 
not  an  assault.  For  example  :  The  defendant,  on  drill  as 
a  soldier,  putting  his  hand  upon  his  sword,  says  to  the 
plaintiff,  '  If  it  was  not  drill-time,  I  would  not  take  such 
language  from  you.'  This  is  not  an  assault,  since  the 
language  used,  under  the  circumstances,  shows  that  there 
was  no  present  attempt,  real  or  apparent,  to  commit 
violence.^ 

If,  however,  the  plaintiff  have  reason  to  believe  that 
harm  was  intended,  there  is  an  assault,  whether  the  de- 
fendant did  or  did  not  intend  harm.  80  at  least  it  is  held 
for  the  purpose  of  civil  redress.  For  example  :  The  de- 
fendant in  an  angry  manner  points  an  unloaded  gun  at 
the  plaintiff',  and  snaps  it,  with  the  apparent  purpose  of 
shooting.  The  gun  is  known  by  the  defendant  to  be  un- 
loaded ;  but  the  plaintiff'  does  not  know  the  fact,  and  has 
no  reason  to  suppose  that  it  is  not  loaded.  The  defend- 
ant is  liable  for  an  assault,  though  he  could  not  have 
intended  to  shoot  the  plaintiff'.'-^ 

The  parties  must  generally  have  been  within  reach  of 
each  other,  not  necessarily  within  arm's  reach,  for  an  as- 
sault may  be  committed  (as  already  appears)  by  means  of 
a  weapon  or  missile  ;  and  in  such  a  case  it  is  only  neces- 
sary that  the  plaintiff  should  have  been  within  reach  of 
the  projectile.^  And  even  when  the  alleged  assault  is 
committed  with  the  fist,  it  is  not  necessary  that  the  plain- 
tiff should  have  been  within  arm's  reach  of  the  defendant, 

^  See  Tnberville  v.  Savage,  1  Mod.  3. 

2  Beach  v.  Hancock,  27  N.  H.  223. 

3  Tarver  v.  State,  43  Ala.  354  ;  State  v.  Taylor,  20  Kans.  643. 


124  I^AW  OF  TORTS.  [Part  IL 

provided  the  defendant  was  advancing  to  strike  the  plain- 
tiff, and  was  restrained  by  others  from  carrying  out  his 
purpose  when  almost  within  reach  of  the  plaintiff.  For 
example  :  The  defendant  advances  toward  the  plaintiff"  in 
an  angry  manner,  with  clenched  fist,  saying  that  he  will 
pull  the  plaintiff  out  of  his  chair,  but  is  arrested  by  a  per- 
son sitting  next  to  the  plaintiff'  between  him  and  the 
defendant.  The  act  is  an  assault,  though  the  defendant 
was  not  near  enough  to  strike  the  plaintiff".^ 

In  like  manner,  if  the  defendant  should  cause  the  plain- 
tiff  to  flee  in  order  to  escape  violence,  he  may  be  guilty  of 
an  assault,  though  he  was  at  no  time  within  reach  of  the 
plaintiff ;  it  is  enough  that  flight  or  concealment  becomes 
necessary  to  escape  the  threatened  evil.  For  example : 
The  defendant  on  horseback  rides  at  a  quick  pace  after 
the  plaintiff,  then  walking  along  a  foot-path.  The  plain- 
tiff" runs  away,  and  escapes  into  a  garden  ;  at  the  gate 
of  which  the  defendant  stops  on  his  horse,  shaking  his 
whip  at  the  plaintiff,  now  beyond  danger.  Th'is  is  an 
assault.'^ 

It  will  be  observed,  from  the  statement  of  the  duty 
which  governs  this  branch  of  the  law,  that  a  mere  assault 
is  a  civil  offence  ;  and  hence  the  person  assaulted  has  a 
right  of  action,  though  he  may  not  have  suffered  any  loss 
or  detriment  from  the  offence.  In  such  a  case,  however, 
unless  the  assault  were  outrageous,  he  could  (probably) 
recover  only  nominal  damages.^ 

§  3.     Of  Batteries. 

A  battery  consists  in  the  unpermitted  application  of 
force  by  one  man  to  the  person  of  another.     A  battery, 

1  Stephens  v.  Myers,  4  Car.  &  P.  349  ;  s.  c.  L.  C.  Torts,  217.. 

2  Mortin  v.  Shoppee,  3  Car.  &  P.  373. 

8  The  damages  recovered  in  Stephens  v.  Myers,  supra,  were  one 
shilling. 


s 


Chap.  VI.  §  3.]      ASSAULT  AND  BATTERY.  125 

therefore,  is  mainly  distinguishable  from  an  assault  in  the 
fact  that  physical  contact  is  necessary  to  accomplish  it. 
But,  as  the  definition  indicates,  this  contact  need  not  be 
effected  by  a  blow  ;  any  forcible  contact  may  be  sufficient. 
For  example :  The  defendant,  an  overseer  of  the  poor, 
cuts  off  the  hair  of  the  plaintiff,  an  inmate  in  the  poor- 
house,  contrary  to  the  plaintiff's  will,  and  without  author- 
ity of  law.  This  is  a  battery,  and  the  defendant  is  liable 
in  damages.^  Again  :  The  defendant,  in  passing  through 
a  crowded  hall,  pushes  his  way  in  a  rude  manner  against 
the  plaintiff.     This  is  also  a  battery.^ 

It  is  not  necessary  that  the  defendant  should  come  in 
contact  with  the  plaintiff's  body.  It  is  sufficient  if  the 
blow  or  touch  come  upon  the  plaintiff's  clothing.  For 
example  :  The  defendant,  in  auger  or  rudeness,  knocks 
off  the  plaintiff's  hat.  This  is  enough  to  constitute  a 
battery.^ 

Indeed,  it  is  not  necessary  that  the  plaintiff's  body  or 
clothing  be  touched.  To  knock  a  thing  out  of  the  plain- 
tiff's hands,  such  as  a  staff'  or  cane,  would  clearly  be  a 
battery  ;  and  the  same  would  be  true  of  the  striking  a 
thing  upon  which  he  is  resting  for  support,  at  least  if 
this  cause  a  fall  or  concussion  to  the  plaintiff.  For 
example  :  The  defendant  strikes  or  kicks  a  horse  upon 
which  the  plaintiff  is  riding,  or  a  horse  hitched  to  a 
wagon  in  which  the  plaintiff  is  riding.  This  is  a  battery.* 
Again  :  The  defendant  drives  a  vehicle  against  the  plain- 

1  Forde  v.  Skinner,  4  Car.  &  P.  239. 

2  Cole  V.  Turner,  6  Mod.  149  ;  s.  c.  L.  C.  Torts,  218. 

3  Mr.  Addison  gives  this  as  an  example  of  a  battery,  without  citing 
authority  ;  but  there  can  be  no  doubt  of  its  correctness.  Addison, 
Torts,  571  (4th  ed.). 

*  Clark  V.  Downing,  55  Vt.  259  ;  Dodwell  v.  P.urford,  1  Mod.  24. 
Probably  it  would  not  be  necessary  that  the  plaintiff  should  be  thrown 
from  the  horse  or  thrown  against  anything. 


12(3  LAW   OF   TORTS.  [Part  II. 

tiff's  carriage,  throwing  the  plaintiff  from  his  seat.  This 
also  is  a  battery.^  Again  :  The  defendant  runs  against 
and  overturns  a  chair  in  which  the  plaintiff  is  sitting. 
This  too  is  a  batter3^^ 

It  appears  from  the  foregoing  examples  that  it  is  not 
necessary  to  constitute  a  battery  that  the  touch  or  blow 
or  other  contact  should  come  directly  from  the  defend- 
ant's person.  Indeed,  a  battery  may  be  committed  at 
any  distance  between  the  parties  if  only  some  violence 
be  done  to  the  plaintiff's  person.  The  hitting  one  with  a 
stone,  or  an  arrow,  or  other  missile,  is  no  less  a  battery 
than  the  striking  one  with  the  fist.  It  is  not  necessary 
even  that  the  object  cast  should  do  physical  harm ;  the 
battery  consists  in  the  unpermitted  contact, '  not  in  the 
damage.  For  example  :  The  defendant  spits  or  throws 
water  upon  the  plaintiff.  This  is  a  battery,  though  no 
harm  be  done.^ 

A  battery  may  be  committed  without  the  least  intention 
to  do  the  plaintiff  harm  ;  it  may  be  the  result  simply  of 
negligence.  For  example :  The  defendant,  a  soldier, 
handles  his  arms  so  carelessly  in  drilling  as  to  hit  the 
plaintiff  with  them.      This  is  a  battery,  though  the  act 

^  Hopper  V.  Reeve,  7  Taunt.  698. 

2  Id.  It  was  held  immaterial  in  this  case  wliether  the  chair  or  car- 
riage belonged  to  the  plaintiff  or  not. 

3  See  Regina  v.  Cotesworth,  6  Mod.  172  ;  Pursell  v.  Horn,  8  Ad.  & 
E.  602.  A  word  of  explanation  is  necessary  as  to  the  latter  case.  The 
plaintiff  had  sued  for  a  battery  by  throwing  of  water  on  him,  and 
had  failed  to  prove  it,  thougli  he  proved  certain  consequential  injuries, 
and  had  a  verdict  for  below  forty  shillings.  The  damages  not  reaching 
forty  .shillings,  and  a  battery  not  having  been  proved,  the  plaintiff  was 
not  entitled  (under  the  .statute)  to  the  costs  given  him.  He  now  at- 
tempted to  show  that  he  had  not  sued  for  a  battery  at  all,  or,  if  he  had, 
that  a  battery  had  been  admitted  by  the  defendant's  plea  ;  which,  if 
true,  would  save  him  his  costs  as  given  by  the  jury.  But  the  court 
decided  against  him,  and  cut  down  the  costs  allowed ;  thus  holding 
that  to  throw  water  upon  a  person  is  a  battery. 


Chap.  VI.  §  3.]      ASSAULT  AND  BATTERY.  127 

was  not  intended.^  The  above-mentioned  case  of  the 
running  into  the  phxiutiff's  carriage  is  another  example.^ 

Indeed,  a  person  may  be  guilty  of  a  battery  where  his 
act  is  directly  caused  by  another  person,  provided  the  de- 
fendant was  engaged  at  the  time  in  an  unlawful  pro- 
ceeding. For  example  :  The  defendant,  when  about  to 
discharge  a  gun  unlawfully  at  a  third  person,  is  jostled 
just  as  the  gun  is  fired,  and  the  direction  of  the  shot  is 
changed  so  as  to  cause  the  plaintiff  to  be  hit.  This  is 
a  battery.^ 

But  while  a  battery  may  be  committed  without  inten- 
tion, it  is  not  to  be  supposed  that  every  unintentional 
act  of  violence  done  to  another  will  constitute  a  bat- 
tery. There  is  no  battery,  according  to  the  just  tendency 
of  modern  authority,  unless  the  blow  by  the  defendant 
was  intentional  or  negligent,  or  unless  the  defendant  was 
otherwise  violating  the  law  at  the  time.*  No  man  when 
doing  that  which  is  lawful  should  be  held  liable  for  con- 
sequences which  he  could  not  prevent  by  prudence  or 
care,  though  another  suffer  bodily  injui'y  thereby.  For 
example :  The  defendant's  horse,  upon  which  the  defend- 
ant is  lawfuU}^  ridiug  in  the  highway,  takes  a  sudden 
fright,   runs  away   with  his   rider,   and    against  all   the 

1  Weaver  v.  Ward,  Hob.  134.  See  Holmes  v.  Mather,  L.  R.  10 
Ex.  261.  The  action  in  snch  a  case  wouhl,  however,  at  the  present 
time,  be  an  action  for  negligence,  aiid  wonld  differ  from  ordinary  actions 
for  negligence  only  in  that  special  damage  would  not  be  necessary 
(probably)  to  recovery. 

2  See  also  Hall  v.  Fearnley,  3  Q.  B.  919. 

8  See  James  v.  Cami)bell,  5  Car.  &  P.  372,  where  the  defendant,  in 
fighting  with  another,  hit  the  plaintiff  with  his  fist. 

*  Coward  v.  Baddeley,  4  H.  &  N.  478,  Martin,  B.  infra ;  Holmes  v. 
Mather,  L.  R.  10  Ex.  261  ;  Wakeman  v.  Robinson,  1  Bing.  213  ;  Hall 
V.  Fearnley,  3  Q.  B.  919  ;  Brown  v.  Kendall,  6  Cush.  292  ;  Vincent  v. 
Stinehonr,  7  Vt.  62  ;  Nitroglycerine  Case,  15  Wall.  524.  Formerly 
however,  the  contrary  was  generally  held.  See  Pollock,  Torts,  122  et 
seq.,  2d  ed. 


128  LAW  OF  TORTS.  [Part  IL 

efforts  of  the  defendant  to  restrain  him,  runs  against 
and  hurts  the  plaintiff.  This  is  not  a  battery  or  other 
breach  of  duty.^  Again :  The  defendant,  walking  near 
the  plaintiff,  suddenly  turns  round,  and  in  so  doing  hits 
the  plaintiff  with  his  elbow.     This  is  not  a  battery.^ 

Nor  is  there  necessarily  a  right  of  action  though  (not 
merely  the  general  action  of  the  defendant,  as  in  the  last 
example,  but)  the  specific  act  of  contact  be  intentional, 
for  it  may  have  been  done  in  sport ;  though  sport  could 
doubtless  be  carried  to  such  an  extreme  as  to  create  lia- 
bility. It  is  not  even  a  decisive  test,  always,  to  inquire 
whether  the  act  was  done  against  the  plaintiff's  will.  The 
plaintiff  may  be  engaged  in  criminal  conduct  at  the  time  ; 
or  he  may  be  lying,  unconsciously,  in  an  exposed  condi- 
tion ;  or  with  the  best  of  intentions  he  may  be  doing  that 
which  the  defendant  rightly  thinks  dangerous  to  life  or 
property.  In  the  first  of  these  cases,  an  arrest  of  the 
plaintiff  by  laying  on  of  hands  will  be  justifiable ;  in  the 
second  case,  an  arousing  or  removing  of  him  will  be 
proper ;  and,  in  the  third,  the  laying  on  of  hands  to 
attract  his  attention  is  lawful.^  In  none  of  these  cases 
is  there  liability,  though  the  contact  be  against  the  will 
of  the  plaintiff.*  If,  however,  the  act  were  done  in  a 
hostile  manner,  the  case  would  be  different.^ 

A  battery  may  be  committed  in  an  endeavor  to  take 
one's  own  property  from  the  wrongful  possession  of 
another.      If  the  party  in  possession  should   refuse   to 

1  See  Vincent  v.  Stinehour,  7  Vt.  62,  and  example  cited  by  Wil- 
liams, C.  J. ;  and  see  Holmes  v.  Mather,  supra,  a  still  stronger  case. 

2  A  case  put  by  Martin,  B.  on  the  argument  in  Coward  v.  Baddeley, 
4  H.  &  N.  478.  See  Brown  v.  Kendall,  6  Cush.  292  ;  Holmes  v. 
Mather,  supra.     See  further  Holmes,  Common  Law,  105,  106. 

8  As  to  the  last  case,  see  Coward  v.  Baddeley,  supra. 
*  These,  however,  are  properly  cases  of  justification  ;  the  justifica- 
tion accompanies  what  otherwise  would  be  actionable. 
5  Coward  v.  Baddeley,  supra. 


Chap.  VI.  §  4.]       ASSAULT   AND  BATTERY.  '  129 

surreuder  the  property,  the  owner  should  resort  to  the 
courts  to  obtain  it,  or  await  an  opportunity  to  get  posses- 
sion of  it  in  a  peaceful  manner.  He  has  no  right  to  take 
it  out  of  the  hands  of  the  possessor  by  force.  For  exam- 
ple :  The  defendant,  finding  the  plaintiff  in  wrongful  pos- 
session of  the  former's  horse,  beats  the  plaintiff,  after  a 
demand  and  refusal  to  give  up  the  animal,  and  wrests  the 
horse  from  the  plaintiff's  possession.     This  is  a  battery.^ 

§  4.     Of  Justifiable  Assault  :  Self-defence  : 
'  Son  Assault  Demesne.' 

There  are  a  few  cases  in  which  a  man  is  entitled  to 
take  the  law  into  his  own  hands  and  inflict  corjioral  in- 
jury upon  another.  Among  these  are  to  be  noticed  the 
right  of  a  parent  to  give  moderate  correction  to  his  minor 
child  ;  the  (probable)  right  of  a  guardian  to  do  the  like  to 
a  minor  ward  placed  in  his  family  ;  the  right  of  a  school- 
master (when  not  prohibited  by  law  or  school  ordinance) 
to  do  the  like  to  his  scholars  ;  ^  the  (possible)  right  of  a 
master  to  do  the  like  to  young  servants ;  and  the  right 
of  officers  of  reform,  discipline,  or  correction,  to  do  the 
like  towards  the  refractory  who  have  been  committed  to 
their  charge. 

Aside  from  these  and  similar  cases,  the  right  to  do 
that  which  would  otherwise  amount  to  an  assault  or  a 
battery  is  confined  to  two  or  three  cases,  all  of  which 
are  justified  on  grounds  either  of  self-defence  or  on  the 
ground  that  the  plaintiff  really  caused  the  act  of  which 
he    complains.      In  the   language   of    the   old    law   the 

1  Andre  v.  Johnson,  6  Blackf.  375.  See  Suggs  v.  Anderson,  12  Ga. 
461.  But  the  defendant  could  keep  his  horse.  Scribner  v.  Beach,  4 
Denio,  448,  4.51. 

2  See  Sheehan  v.  Sturges,  53  Conn.  481  ;  Hathaway  v.  Rice,  19  Vt. 
102  ;  Commonwealth  v.  Randall,  4  Gray,  36  ;  Cooper  v.  McJunkin,  4 
Ind.  290  ;  Fertich  v.  Michener,  111  lud.  472. 

9 


130  LAW  OF  TORTS.  [Part  II. 

wrong  complained  of  by  the  plaintiff  was  '  son  assault 
demesne.'  A  person  cannot  be  liable  for  an  act  which 
he  himself  has  not  committed  or  caused,  either  personally 
or  by  another  authorized  to  act  for  him.  Hence  if  the 
plaintiff  himself  caused  the  act  complained  of,  the  de- 
fendant cannot  be  liable  to  him  for  it. 

The  chief  case  to  be  noticed  in  which  the  justification 
of  son  assault  demesne  is  allowed,  is  self-defence.  Wher- 
ever it  has  become  apparently  necessary  to  th.e  defendant's 
protection  to  repel  force  by  force,  he  may  do  so.^  The 
right  of  self-defence  is  sanctioned  as  well  by  the  muni- 
cipal law  as  by  the  law  of  nature.  And  the  right  extends 
to  the  use  of  physical  force  in  the  protection  of  property 
as  well  as  of  the  person  of  the  defendant,  provided  the 
property  be  at  the  time  in  the  defendant's  possession. 
No  one  has  a  right,  except  under  authority  of  law,  to 
seize  upon  the  property  of  which  the  owner  is  in  posses- 
sion ;  to  do  so  is  to  take  the  risk  of  bodily  violence.  For 
example  :  The  plaintiff,  a  creditor  of  the  defendant,  seizes 
the  defendant's  horses  (which  the  latter  is  using)  for  the 
purpose  of  obtaining  satisfaction  of  his  debt.  The  de- 
fendant resists  and  strikes  the  plaintiff.  He  is  not  liable 
if  he  did  not  exceed  the  bounds  of  defence.^ 

If  the  owner  or  person  entitled  to  possession  was  out  of 
possession  at  the  time  of  committing  the  alleged  assault 
or  battery,  he  will  not  be  permitted  to  say,  by  way  of 

1  Drew  V.  Comstock,  57  Mich.  176  ;  Miller  v.  State,  74  Ind.  1.  The 
difficulty  is  in  determining  when  it  is  apparently  necessary  to  do  the 
thing  complained  of,  and  when  one  may  strike  or  shoot  without  first 
'  retreating  to  the  wall.'  See  Howland  v.  Day,  56  Vt.  318  ;  Haynes  v. 
State,  17  Ga.  465  ;  State  v.  Dixon,  75  N.  Car.  275  ;  Cooley,  Torts,  190, 
2d  ed.  Retreat  cannot  be  required  where  action  upon  the  instant  ap- 
pears to  be  necessary  for  self-protection.  See  Pollock,  Torts,  156,  196, 
2d  ed.     The  question  does  not  often  arise,  however,  in  civil  suits. 

2  See  Cluff  V.  Mutual  Ben.  Life  Ins.  Co.,  13  Allen,  308  ;  s.  c.  99 
Mass.  317  ;  Scribner  r.  Beach,  4  Denio,  448. 


Chap.  VI.  §  4  ]      ASSAULT  AND   BATTERY.  131 

defence,  that  the  plaintiff  caused  the  assault  by  having 
previously  taken  wrongful  possession,  or  by  having 
wrongfully  detained  the  defendant's  property.  Such  is 
not  a  case  of  son  assault  demesne,  as  the  example 
already  given  of  tlie  horse  taken  from  the  plaintiff's 
possession   by   violence   shows. ^ 

And  though  a  trespasser  should  make  an  assault  upon 
the  owner  of  property,  and  seek  to  take  it  out  of  the 
owner's  possession,  the  owner  is  allowed  to  use  no 
greater  force  in  resisting  the  unlawful  act  than  may  be 
necessary  for  the  defence  of  his  possession.^  If  he  should 
reply  to  the  trespasser's  attempt  with  a  force  out  of  pro- 
portion to  the  provocation,  the  act  will  then  be  his  own 
battery,  and  not  the  plaintiff's  ;  or  again,  in  the  technical 
language  of  the  old  pleading,  the  plaintiff  can  then  reply 
to  the  defendant's  plea  of  son  assault  demesne,  that  the 
tort  was  '  de  injuria  sua  propria,'  —  the  defendant's  own 
wrong.  For  example  :  The  defendant,  owner  of  a  rake 
which  is  in  his  own  hands,  knocks  the  plaintiff  down 
with  his  fist,  upon  the  plaintiff's  taking  hold  of  the  rake  to 
get  possession  of  it.  The  defendant  is  liable.^  Again  : 
The  defendant  strikes  the  plaintiff  repeated  blows,  knock- 
ing her  down  several  times,  upon  her  refusal  to  quit 
the  defendant's  house.  The  plaintiff  is  entitled  to  re- 
cover.* 

Nor  is  it  lawful  for  the  owner  of  property,  in  defence  of 
his  possession,  to  make  an  attack  upon  the  trespasser 
without  first  calling  upon  him  to  desist  from  his  unlawful 
purpose,  unless  the  trespasser  is  at  the  time  exercising 

1  Ante,  p.  129. 

2  The  allowable  force  in  such  a  case  is  expressed  by  the  words  of 
the  old  pleading  '  molliter  manus  imposuit ',  —  the  defendant  gently 
laid  his  hands  npon  the  plaintiff. 

8  Scribner  v.  Beach,  4  Denio,  448. 
<  Gregory  v.  Hill,  8  T.  R.  299. 


132  LAW  OF  TORTS.  IPart  II. 

violence.  In  the  example  last  given,  the  defendant  would 
have  been  liable  for  a  mere  hostile  touch  had  he  not  first 
requested  the  plaintiff  to  leave  his  premises ;  unless  she 
had  entered  his  premises  with  force. ^ 

In  the  next  place,  it  is  to  be  observed  that  a  person  may 
not  only  make  reasonable  defence  of  his  own  person,  and 
of  the  possession  of  his  own  property ;  he  may  do  the 
same  towards  the  members  of  his  own  family  when  at- 
tacked,^ and  perhaps  also  towards  the  inmates  of  a  house 
in  which  he  is  then  recehing  hospitality.  Certain  it  is, 
that  a  servant  may  justify  a  battery  as  committed  in  de- 
fence of  his  master ;  ^  that  is,  he  may  do  anything  in  his 
master's  defence  which  his  master  himself  might  do. 
And,  on  the  other  hand,  notwithstanding  some  doubts  in 
the  books,  a  master  may  justify  a  battery  as  committed 
in  defence  of  his  servant.  For  example :  The  plaintiff 
attacks  the  defendant's  servant,  whereupon  the  defendant 
assists  his  servant  to  the  extent  of  repelling  the  attack, 
and  no  further.     The  defendant  is  not  liable.^ 

A  person  may  also  justify  the  use  of  a  proper  amount 
of  physical  force  as  rendered  in  quelling  a  riot  or  an  affray 
at  the  instance  of  a  constable  or  other  officer  of  the  peace, ^ 
or  perhaps  of  his  own  motion,  when  no  officer  is  present. 

§  5.     Of  Violence  to  or  towards  one's  Servants. 

It  will  have  been  observed  that  a  double  breach  of  duty 
may  be  committed  by  the  same  assault  or  battery ;  one  to 
the  person  to  whom  the  violence  is  done,  and,  where  such 
person  is  a  servant  or  a  child  of  the  plaintiff,  another 

•*  See  Scribner  v.  Beach,  4  Denio,  448. 

2  1  Black.  Com.  429. 

8  Reeve,  Domestic  Rel.  538  (Srded.). 

*  Tickell  V.  Read,  Lofft,  215. 

»  Year-Book,  19  Hen.  6,  pp.  43,  56  ;  L.  C.  Torts,  270. 


Chap.  VI.  §5.]      ASSAULT  AND  BATTERY.  133 

breach  to  the  person  whom  he  or  she  was  serving  or  as- 
sisting. It  follows  that  each  has  a  right  of  action  against 
the  wrongdoer  in  respect  of  the  breach  of  his  own  indi- 
vidual right ;  the  servant  or  child  for  the  violence  (that 
is,  for  the  assault  or  battery),  and  its  proper  conse- 
quences, and  the  master  or  parent  for  the  loss  of  service 
or  assistance.^ 

There  will  be  this  difference,  however,  between  the 
rights  of  action  of  the  master  and  the  servant  (using 
these  terms  generically),  that  the  latter  will  be  entitled  to 
recover  judgment  for  the  mere  assault  and  battery,  though 
no  damage  were  actually  inflicted ;  while  the  former  will 
be  entitled  to  judgment  only  in  case  he  can  prove  either 
(1)  that  the  violence  committed  was  such  as  to  disable  the 
person  who  sustained  it  from  rendering  the  amount  of  aid 
which  he  or  she  was  able  to  render  before  the  act  com- 
plained of ;  or  (2)  that  such  person  was,  by  reason  of  the 
violence,  caused  to  depart  from  or  abandon  the  service  or 
abode  of  the  plaintiff.^  That  is,  the  master  must  have 
sustained  an  actual  damage ;  ^  but,  if  he  has  thus  been  in- 
jured, he  is  entitled  to  recover  therefor,  even  though  the 
defendant's  act  consisted  only  in  violent  demonstrations. 
For  example  :  The  defendants,  by  menaces  and  angry 
demonstrations  against  the  plaintiff's  servants,  cause  them 
to  leave  and  abandon  the  plaintiff's  service.     The  defend- 

^  The  relation  of  parent  and  child  is  for  such  purpose  the  relation  of 
master  and  servant.  That  is  not  true  of  the  relation  of  husband  and 
wife  ;  but  whether  the  husband  could  recover  alone  for  a  battery  com- 
mitted upon  his  wife  without  proving  special  damage,  quaere  ? 

2  The  authorities  upon  this  subject  are  mostly  ancient,  but  they 
are  still  law.     See  L.  C.  Torts,  226,  227. 

3  In  the  case  of  an  assault  or  battery  upon  one's  wife,  the  husband 
at  common  law  joined  in  the  action  ;  but  the  real  right  of  action  lay  in 
the  wife.  And,  in  times  of  servitude,  the  master  could  perhaps  sue  for 
an  assault  or  battery  committed  upon  his  villein,  even  though  the 
former  sustained  no  damage.     L.  C.  Torts,  227. 


134  LAW   or  TORTS.  [Part  II. 

ants  are  liable ;  though  no  bodily  violence  was  committed 
upon  the  servants.^ 

In  regard  to  the  master's  right  of  action,  it  matters  not 
how  slight  the  services  may  be  which  the  servant  could 
render ;  if  he  could  render  any,  and  has  been  disabled  or 
driven  away,  the  master's  rights  have  been  violated,  and 
the  wrongdoer  is  liable  to  him.  For  example  :  The  de- 
fendant commits  an  assault  and  battery  upon  the  plain- 
tiff's daughter,  and  disables  her  from  serving  at  the  head 
of  his  table,  as  she  has  been  accustomed  to  do.  The 
plaintiff  is  entitled  to  recover  for  the  loss  of  service.^ 

The  plaintiff'  must,  however,  either  have  been  entitled 
to  require  the  services  of  the  party  assaulted  or  beaten, 
or  he  must  have  been  in  the  actual  enjoyment  of  them,  if 
they  were  gratuitous.  A  parent  cannot  maintain  an  ac- 
tion for  an  assault  or  a  battery  committed  upon  his  child 
after  the  child's  majority,  unless  he  or  she  was  then 
actually  in  the  parent's  service ;  nor  could  the  parent 
maintain  an  action  for  such  an  injury  committed  upon  his 
child  during  the  child's  minority,  if  the  parent  had  in  any 
way  divested  himself  of  the  right  to  require  his  child's 
services.^ 

It  is  laid  down  that  only  the  parties  to  a  contract  (and 
their  successors  in  right)  can  maintain  an  action  for  a 
breach  thereof ;  and  hence  that  if,  in  the  course  of  per- 
forming a  contract  between  the  defendant  and  the  plain- 
tiff's servant,  the  defendant  commit  a  battery  upon  the 
servant,  which  battery  works  a  breach  of  the  terms  of  the 

1  Year-Book,  20  Hen.  7,  p.  5 ;  L.  C.  Torts,  226  ;  and  compare 
Walker  v.  Cronin,  107  Mass.  555. 

^  The  following  cases,  thongh  actions  for  seduction,  will  justify  this 
example  :  Bennett  v.  Allcott,  2  T.  R.  166 ;  Maunder  v.  Venn,  Moody 
&  M.  323  ;  Thompson  v.  Ross,  5  H.  &  N.  16. 

3  Questions  of  this  sort  have  generally  arisen  in  actions  for  seduc- 
tion ;  and,  since  the  subject  must  be  elsewhere  fully  examined,  it  need 
not  be  further  pursued  at  present.     See  chapter  iii. 


Chap.  VI.  §  5.]      ASSAULT  AND  BATTERY.  135 

contract,  the  plaintiff  has  no  right  of  action  for  the  loss 
of  service  following.  For  example :  The  defendants, 
common  carriers  of  passengers,  are  paid  by  the  plaintiff's 
servant  for  safe  passage  from  A  to  B.  On  the  way,  the 
servant  is  severely  bruised,  wounded,  and  injured  by  rea- 
son of  the  failure  of  the  defendants  to  carry  him  safely 
according  to  their  agreement ;  and  the  plaintiff"  thereby 
loses  the  injured  person's  service  for  a  period  of  nineteen 
weeks.  The  plaintiff  is  held  not  entitled  to  recover ;  the 
injury  being  deemed  to  be  due,  in  law,  to  breach  of  con- 
tract with  the  servant.^ 

Whether  the  case  would  have  been  dift'erent  had  the 
carrier  had  notice  of  the  relation  between  the  plaintiff'  and 
the  passenger  is  not  clear ;  probably  it  would  not.  It  is 
clear  that  without  notice  there  would  be  no  ground  for 
liability.  But  the  doctrine  itself  has  been  much  and,  it 
seems,  justly  criticised.^ 

By  the  common  law,  rights  of  civil  action  for  injuries 
done  to  the  person  (and  indeed  all  rights  of  action  ex 
delicto,  excepting  for  the  wrongful  taking  or  detention  of 
property  and  like  acts)  ,^  cease  with  the  death  of  the  party 
injured  or  of  the  wrongdoer.  '  Actio  personalis  moritur 
cum  persona.'     And  this   rule,  though  not   without  the 

1  Alton  V.  Midland  Ry.  19  C.  B.  N.  s.  213  ;  s.  c.  15  Jur.  n.  s.  672  ; 
Fairmount  Ry.  Co.  v.  Stutlei-,  54  Penn.  St.  375. 

2  See  the  same  subject  again,  post,  chapter  xvii.  §  9. 

3  See  Phillips  v.  Homfray,  24  Ch.  Div.  439  ;  also  the  early  statutes, 
generally  adopted  in  the  United  States,  4  Edw.  III.  c.  7,  25  Edw.  III. 
St.  5,  c.  5,  and  the  modern  one,  3  &  4  Wm.  IV.  c.  42 ;  Pollock.  Torts, 
59,  2d  ed.  And  Lord  Campbell's  Act,  9  &  10  Vict.  c.  93,  copied  very 
widely  in  this  country,  with  slight  changes,  gives  a  right  of  action  to 
the  personal  representative  '  for  the  benefit  of  the  wife,  husband,  parent 
and  child  of  the  person '  killed.  See  Seward  v.  The  Vera  Craz,  10  App. 
Gas.  59  (overruling  The  Franconia,  2  P.  D.  163) ;  Pym  v.  Great  North- 
ern Ry.  Co.  4  Best  &  S.  396,  Ex.  Ch.  ;  Bulmer  v.  Bulmer,  25  Ch.  D. 
409. 


136  LAW   OF   TORTS.  [Part  II. 

gravest  doubts,  has  been  held  to  apply  to  actions  by  mas- 
ters for  the  killing  of  their  servants.^  The  rule  that  the 
action  dies  with  the  death  of  either  party  permits,  how- 
ever, an  action  by  the  master  for  damages  between  the 
time  of  the  injury  of  the  servant  and  his  death,  where 
death  was  not  immediate."^ 

1  Osborn  v.  Gillett,  L.  R.  8  Ex.  88,  Bramwell,  B.  disseuting 
strongly.  Sir  F.  FoUock  doubts  whether  the  decision  would  be  fol- 
lowed by  the  Court  of  Appeal.     Torts,  57,  58,  2d  ed. 

2  Baker  v.  Bolton,  1  Camp.  493  ;  Osborn  v.  Gillett,  L.  R.  8  Ex.  88, 
90,  98  ;  Sullivan  v.  Union  Pacific  R.  Co.  1  Cent.  L.  J.  595.  See  also 
Insurance  Co.  v.  Brame,  95  U.  S.  754  ;  2  Southern  Law  Rev.  N.  8. 
186. 


CHAPTER  VII. 

FALSE   IMPRISONMENT. 

§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  for- 
bear to  impose  a  total  restraint  upon  B's  freedom  of 
locomotion. 

1.  Tlie  terms  'writ,'  'warrant,'  'precept,'  and  'pro- 
cess,' are,  in  this  cliapter,  used  as  equivalents,  wherever  it 
is  not  necessary  to  distinguish  them. 

2.  The  term  '  irregular,'  as  applied  to  a  writ,  refers  to 
some  improper  practice  on  the  part  of  the  person  who 
obtains  the  writ.  A  writ  is  sometimes  absolutely  void 
for  UTegularity,^  and  sometimes  only  voidable. 

3.  By  comparatively  recent  statutes,  arrest  in  civil  suits 
has  been  prohibited,  except  in  a  few  special  cases, ^  so  that 
the  particular  facts  of  many  of  the  older  authorities  no 
longer  appear  ;  but  the  principles  upon  which  they  rested 
have  not  been  changed. 

§  2.     Of  the  Nature  of  the  Restraint. 

A  false  imprisonment  consists  in  the  total,  or  substan- 
tially total,  restraint  of  a  man's  freedom  of  locomotion, 
without  authority  of  law,  and  against  his  will.^  Such  an 
act  may  be  committed  not  only  by  placing  a  man  within 

1  As  a  writ  in  execution  of  a  judgment  which  has  been  discharged  to 
the  knowledge  of  the  person  suing  out  the  same.  Deyo  v.  Van  Valken- 
burgh,  5  Hill,  242. 

2  See  e.  g.  Mass.  Pub.  Stats,  c.  162,  §§  1-3. 
8  Bird  V.  Jones,  7  Q.  B.  742,  752. 


138  LAW  OF  TORTS.  [Part  IL 

prison  walls,  but  also  by  restraint  imposed  upon  him  in 
his  own  house  or  room,  or  in  the  highway,  or  even  in  an 
open  field. ^ 

Any  general  restraint  is  sufficient  to  constitute  an  im- 
prisonment ;  and  though  this  be  effected  without  actual 
contact  of  the  person,  it  will  be  actionable  if  unlawful. 
Any  demonstration  of  physical  power  which,  to  all  ap- 
pearance, can  be  avoided  only  by  submission,  operates  as 
effectually  to  constitute  an  imprisonment,  if  submitted  to, 
as  if  any  amount  of  force  had  been  exercised.  For  exam- 
ple :  The  defendant,  an  officer,  says  to  the  plaintiff,  '  I 
want  you  to  go  along  with  me,'  with  a  show  of  authority 
or  of  determination  to  compel  the  plaintiff  to  go.  This  is 
an  imprisonment,  though  the  defendant  do  not  touch  the 
plaintiff.^ 

A  person  may  also  be  imprisoned,  though  he  had  not 
the  full  power  of  locomotion  before  the  restraint  was  im- 
posed. It  appears  to  be  sufficient  if  his  will  has  been 
so  overcome  that  he  would  not  attempt  to  escape  the 
restraint  if  he  had  the  physical  ability  of  locomotion. 
For  example  :  The  defendant,  a  creditor  of  the  plaintiff, 
goes  with  an  officer  to  the  plaintiff's  house,  in  order  to 
compel  him  to  give  security  for  or  make  payment  of  his 
debt,  which  is  not  due.  The  plaintiff  is  found  sick  in 
bed ;  whereupon  the  officer  tells  him  that  they  have  not 
come  to  take  him,  but  to  get  a  certain  article  of  property 
belonging  to  the  plaintiff,  though,  if  he  will  not  deliver 
that  or  give  security,  they  must  take  him  or  leave  some 
one  in  charge  of  him.  The  plaintiff,  much  alarmed,  gives 
up  the  article.     This  is  an  imprisonment.^ 

1  Lib.  Ass.  (22  Edw.  III.),  p.  104,  pi.  85,  a  very  old  case,  but  good 
lawo 

2  Brushaber  v.  Stegemann,  22  Mich.  266,  268.  See  Hill  v.  Taylor, 
50  Mich.  549. 

3  Grainger  v.  Hill,  4  Bing.  N.  C.  212  ;  s.  c.  L.  C.  Torts,  184. 


Chap.  VII.  §  2.]       FALSE  IMPRISONMENT.  139 

The  submission,  therefore,  to  the  threatened  and  rea- 
sonably apprehended  use  of  force  is  not  to  be  considered 
as  a  consent  to  the  restraint,  within  a  maxim  which 
has  frequent  application  in  the  law  of  torts ;  '  volenti 
non  fit  injuria.'  And  the  imprisonment  continues  until 
the  party  is  allowed  to  depart,  and  is  involuntary  until 
all  general  restraint  ceases,  aud  the  means  of  effecting 
it  are  removed.^ 

It  is  not  enough  that  restraint  is  imposed  upon  one's 
freedom  of  proceeding  in  a  particular  desired  direction. 
The  detention  must  be  such  as  to  cause  escape  in  any 
direction  to  amount  to  a  breach  of  the  restraint ;  the 
restraint  should  be  circumscribing,  except,  perhaps, 
where  the  only  place  of  escape  is  an  almost  impass- 
able one.  For  example :  The  defendant,  an  officer, 
stationed  at  a  particular  point  to  prevent  persons  from 
passing  in  a  certain  direction,  restrains  the  plaintiff  from 
passing  that  way,  but  leaves  another  way  open  to  him, 
of  which,  however,  he  does  not  wish  to  avail  himself ; 
and,  thus  detained,  the  plaintiff  stands  there  for  some 
time.     This  is  not  an  imprisonment.^ 

It  follows  from  the  last  proposition,  and  from  what 
had  been  stated  before,  that  a  person  detained  within 
walls  is  none  the  less  imprisoned  by  reason  of  the  fact 
that  he  may  make  an  escape  through  an  unfastened  win- 
dow or  door ;  since  such  an  act  would  be  a  breach  of 
the  restraint.     If  it  would  not  be,  there  is  no  imprison- 

1  Johnson  v.  Tompkins,  Baldw.  571,  602. 

2  Bird  V.  Jones,  7  Q.  B.  742.  'A  prison  may  have  its  boundary 
large  or  narrow,  invisible  or  tangible,  actual  or  real,  or  indeed  in  con- 
ception only  ;  it  may  in  itself  be  movable  or  fixed  ;  but  a  boundary  it 
must  have,  and  from  that  boundary  the  party  imprisoned  must  be  pre- 
vented from  escaping  ;  he  must  be  prevented  from  leaving  that  place 
within  the  limit  of  which  the  party  imprisoned  could  be  confined.'  Id. 
Coleridge,  J. 


140  LAW   or  TORTS.  [Part  II. 

ment ;    supposing  that  the  unfastened  door  or   window 
affords  a  ready  means  of  escape. 

§  3.     Of  Arrests  with  Warrant. 

Supposing  the  restraint  imposed  to  amount  to  an  im- 
prisonment, it  is  to  be  noticed  that  the  imprisonment 
must  be  a  false  one,  that  is,  it  must  be  an  illegal  re- 
straint of  freedom,  in  order  to  constitute  it  a  breach  of 
duty.  Under  what  circumstances,  then,  is  an  imprison- 
ment illegal?  It  would  be  impracticable  to  answer  this 
in  the  way  of  any  general  rule,  and  quite  as  much  so  in 
this  place  to  set  down  all  the  cases  of  the  books.  The 
most  common  and  important  case  of  justification,  render- 
ing lawful,  that  is  to  say,  what  otherwise  would  be 
unlawful,  is  where  an  officer  has  made  an  arrest  under  a 
lawful  warrant  of  a  court  of  justice.^  This  case  will  be 
taken  for  special  consideration. 

It  is  to  be  observed  at  the  outset  that  the  officer,  in 
executing  his  process,  must  arrest  the  person  named  in 
it.  If  he  do  not,  though  the  arrest  of  the  wrong  person 
was  made  through  mere  mistake,  it  may  be  a  case  of 
false  imprisonment.  And  this  appears  to  be  true,  though 
the  partj^  arrested  bear  the  same  name  as  the  party 
against  whom  the  writ  is  directed.  For  example :  The 
defendant,  a  constable,  asks  the  plaintiff  if  his  name  is 
J.  D.,  to  which  the  plaintiff  replies  in  the  affirmative; 
whereupon  the  defendant  takes  the  plaintiff  into  custody, 
the  plaintiff  not  being  the  person  intended  by  the  writ. 
This  is  a  case  of  false  imprisonment.^ 

If,  however,  the  plaintiff,  though  not  the  person  in- 

1  See  observation  3,  p.  137,  of  arrests  in  civil  suits. 

2  Coote  r'.  Lighworth,  F.  Moore,  457.  It  is  to  be  noticed  that  the 
plaintiff  in  this  case  did  nothing  to  induce  the  officer  to  arrest  him  as 
the  person  intended. 


Chap.  VII.  §  3.]        FALSE   IMPRISONMENT.  141 

tended  by  the  process,  should  do  anything  to  mislead 
the  officer,  and  cause  the  latter  to  believe  that  the  former 
was  the  person  meant  by  the  precept,  the  officer  com- 
mits no  breach  of  duty  in  making  the  arrest.  The 
plaintiff's  action  is  a  consent,  and  something  more.  For 
example :  The  defendant,  a  sheriff,  arrests  the  plaintiff 
under  process  of  court,  upon  a  representation  made  by 
her  that  she  was  E.  M.  D.,  and  the  person  against  whom 
the  writ  had  issued ;  with  the  intention  of  procuring  the 
defendant  to  arrest  her  under  his  writ.  The  defendant, 
believing  the  representation  to  be  true,  makes  the  arrest. 
This  is  not  a  breach  of  duty.^ 

The  officer's  process,  however,  should  so  describe  the 
person  to  be  arrested  that  he  may  know  whom  to  arrest ; 
or,  rather,  that  a  person  whom  he  proposes  to  arrest  may 
know  whether  to  resist  or  submit.  If  the  warrant  be  de- 
fective in  this  particular,  the  officer  acts  at  his  peril  in 
serving  it ;  and  he  will  be  liable  to  any  one  whom  he  may 
arrest  under  it.  For  example  :  The  defendant,  a  consta- 
ble, arrests  the  plaintiff  under  a  warrant  reciting  the  com- 
mission of  a  felony  by  John  R.  M.,  and  then  commanding 
the  officer  to  arrest  the  said  William  M.  The  defendant 
is  liable  for  false  imprisonment,  though  the  plaintiff  is  the 
person  intended.^ 

It  follows  that  the  officer  may  be  liable  if  there  be  a 
misnomer  in  the  warrant  of  the  person  intended,  though 
the  person  actually  meant  was  arrested,  and  that,  too,  (in 
other  respects)  on  legal  grounds.  For  example  :  The  de- 
fendants cause  the  plaintiff,  whose  name  is  Eveline,  to  be 
arrested  under  the  name  of  Emeline  in  the  warrant.  This 
is  a  breach  of  duty,  though  the  plaintiff,  in  her  proper 

1  Dunston  v.  Paterson,  2  C.  B.  N.  s.  495.  The  sheriff,  however, 
had  detained  the  plaintiff  improperiy  after  discovering  his  mistake,  and 
for  this  he  was  held  liable. 

2  Miller  v.  Foley,  28  Barb.  630. 


142  LAW  OF  TORTS.  [Part  II. 

name,  was  legally  liable  to  such  an  arrest.^  But  the  case 
would  have  been  different  had  the  plaintiff  been  known 
alike  by  either  name.^ 

The  officer  also  loses  the  protection  of  his  warrant  if 
he  fail  to  act  in  accordance  with  the  duty  enjoined  by 
it.  He  must  follow  the  tenor  of  his  process,  and  not 
surpass  his  authority.  For  example :  The  defendant 
arrests  the  plaintiff  beyond  the  precincts  named  in  the 
warrant.     This  is  a  false  imprisonment.'^ 

It  is  further  to  be  noticed  that,  though  the  process  and 
arrest  be  valid,  the  protection  of  the  officer  may  be  lost 
by  oppressive  or  cruel  conduct.  For  example  :  The  de- 
fendant, charged  with  a  warrant  simply  to  take  the  body 
of  the  plaintiff,  unites  with  the  person  at  whose  instance 
the  arrest  is  made  in  illegally  extorting  money  from  the 
plaintiff  by  working  upon  his  fears.  The  defendant  is 
liable  for  a  false  imprisonment.* 

The  officer's  protection  will  not  extend  to  any  detention 
after  the  warrant  has  expired.  The  warrant,  however 
valid  at  first,  will  not  justify  such  an  act.  If  the  officer 
has  reason  for  holding  the  prisoner  after  the  expiration 
of  the  warrant,  he  must  procure  new  process.  He  can 
hold  the  prisoner  only  for  a  reasonable  time  before  his 
examination ;  after  that  time,  the  warrant  loses  its 
vitality.  For  example  :  The  defendant  arrests  the  plain- 
tiff, and  takes  him  before  a  magistrate  on  a  charge  of 
larceny,  detaining  him  for  a  period  of  three  days,  in 
order  that  the  party  whose  goods  had  beea  stolen  might 

1  Scott  V.  Ely,  4  Wend.  555. 

2  Griswold  v.  Sedgwick,  1  Wend.  126. 

8  This  is  too  fundamental  to  have  been  much  agitated  in  the  courts. 
No  authority  is  needed  for  the  example. 

*  Holley  V.  Mix,  3  Wend.  350.  In  such  a  case  the  process  appears 
to  be  used  as  a  mere  subterfuge  to  cover  an  unlawful  purpose  and  act. 
See  ante,  p.  73.  Hence  it  is  that  not  merely  the  subsequent  act  but 
the  arrest  itself  is  unlawful.     See  post,  pp.  198,  199. 


Chap.  VII.  §  3.]       FALSE   IMPRISONMENT.  143 

have  au  opportimity  to  collect  his  witnesses  and  prove 
the  crime.  This  is  a  false  imprisonment,  the  detention 
being  unreasonable.-^ 

When  an  arrest  has  been  made  upon  a  valid  warrant, 
the  officer  may  detain  the  prisoner  on  any  number  of 
other  valid  warrants  which  he  has  at  the  time,  or  which 
may  afterwards,  during  the  detention,  reach  him.  But  if 
the  officer  make  the  arrest  on  void  process,  or  in  an  otherr 
wise  illegal  manner,  he  has  no  right  to  detain  the  party 
on  any  valid  process  which  may  be  in  his  hands ;  for 
the  officer,  upon  a  principle  elsewhere  stated,  cannot 
avail  himself  of  a  custody  effected  by  illegal  means  to 
execute  valid  process.^  The  prisoner  should  first  be  per- 
mitted to  go  at  large,  and  then  arrested  under  the  valid 
warrant.  For  example  :  The  defendant  improperly  arrests 
the  plaintiff  without  a  warrant,  and  while  holding  him  in 
custody  delivers  him  to  an  officer.  The  defendant  after- 
wards receives  a  valid  warrant  for  the  plaintiff's  arrest 
from  an  officer  who  held  it  at  the  time  of  the  arrest. 
The  plaintiff  has  a  right  of  action  for  a  false  imprison- 
ment.^ 

The  principle  to  be  derived  from  the  cases  (to  restate 
this  important  doctrine  in  the  language  of  the  courts)*  is, 
then,  that  where  the  officer  legally  arrests  the  party  in 
one  action,  the  arrest  operates  virtually  as  an  arrest 
in  all  the  actions  in  which  the  officer  holds  valid  writs 
against  him  at  the  time  ;  for  it  would  be  an  idle  ceremony 
to  arrest  the  party  in  the  other  cases.  And  this  detainer 
will   hold  good,  though  the  court  may,   upon  collateral 

1  Wright  V.  Court,  4  B.  &  C.  596.  The  prisoner  should  have  been 
taken  before  a  magistrate  at  once. 

'^  Hooper  v.  Lane,  6  H.  L.  Cas.  443'. 

8  Barratt  v.  Price,  9  Bing.  566. 

4  Tindal,  C.  J.  in  Barratt  v.  Price,  and  Williams,  J.  in  Hooper  ». 
Lane,  supra. 


144  LAW  OF  TOETS.  [Part  IL 

grounds,  unconnected  with  the  act  of  the  officer,  order 
the  party  to  be  discharged  from  the  first  arrest.  But 
where  the  officer  has  illegally  arrested  the  party,  he  is 
not  in  custody  under  the  first  warrant,  but  is  suffering  a 
false  imprisonment ;  and  such  false  imprisonment,  being 
no  arrest  in  the  original  action,  cannot  operate  as  an 
arrest  under  the  other  warrants  in  the  officer's  hands. 

It  is  important,  in  the  next  place,  to  inquire  into  the 
right  of  an  officer  to  retake  a  prisoner  under  the  original 
warrant,  after  an  escape.  It  is  clear  that  if  the  escape 
was  made  without  the  consent  of  the  officer,  while  the 
writ  was  still  in  force,  the  prisoner  may  be  retaken  on  the 
old  warrant,  without  rendering  the  officer  liable  to  an 
action  for  false  imprisonment.  In  case  of  an  escape  per- 
mitted by  the  officer,  his  right  of  retaking  on  the  old  writ 
will  depend  on  the  nature  of  the  case.  When,  in  civil 
cases,  an  arrest  is  proper,  an  officer  who  has  arrested  a 
man  may,  it  seems,  retake  him  before  the  return  of  the 
process,  though  he  voluntarily  permitted  him  to  escape 
immediately  after  the  arrest.  So  at  all  events  it  was  held 
under  the  old  law.  For  example  :  The  defendant  arrests 
the  plaintiff  in  civil  process,  and  on  the  following  day 
releases  him  upon  the  latter's  request.  Two  days  after- 
wards, the  defendant  rearrests  the  plaintiff  on  the  old 
process  and  commits  him  to  jail,  where  he  remains  until 
he  gives  bail ;  the  old  process  not  being  yet  returnable 
(that  is,  being  still  in  force).  This  is  not  a  breach  of 
duty  on  the  part  of  the  officer.^ 

In  regard  to  criminal  cases,  there  has  been  some  con- 
flict of  authority  concerning  the  right  to  take  the  prisoner 
without  new  process.  It  has  sometimes  been  decided  that 
the  prisoner  may  be  so  retaken.^     In  later  decisions,  this 

1  Atkinson  v.  Matteson,  2  T.  K.  172. 

2  Clark  V.  Cleveland,  6  Hill,  344.    In  this  case,  the  prisoner  had 


Chap.  VII.  §  3.]      FALSE   IMPRISONMENT.  145 

doctrine  has  been  denied  to  be  law,  except  in  so  far  as  it 
may  apply  to  the  case  of  a  prisoner  who,  after  escape, 
has  returned  and  given  himself  into  custody  of  the  officer  ; 
in  that  case  the  prisoner  can  be  detained  under  the  old 
warrant.^  And  this  appears  to  be  the  true  rule  and  dis- 
tinction. For  example  :  The  defendant,  an  officer  of  the 
peace,  clothed  with  a  warrant  to  arrest  the  plaintiff  upon 
a  charge  of  larceny,  executes  the  same  upon  her,  and 
takes  her  before  a  justice  of  the  peace,  who  receives  her 
recognizance  to  appear  for  trial  at  another  court  upon  a 
certain  day.  She  is  then  discharged  from  arrest.  No 
court  is  held  at  the  place  and  time  stated.  Afterwards 
the  defendant  rearrests  her  upon  the  old  warrant,  and 
takes  her  before  another  magistrate.  This  is  a  false 
imprisonment. - 

An  arrest  made  under  a  void  writ  will  generally  render 
the  officer,  as  has  already  been  stated,  liable  to  an  action 
for  false  imprisonment.  But  in  order  to  subject  him  to 
such  liability,  the  writ  must  have  been  actually  void  ;  that 
is,  of  no  more  validity  than  waste  paper.  If  it  be  voidable 
merely,  or  if,  though  void,  the  fact  does  not  appear  on  the 
face  of  the  process,  especially  if  the  officer  does  not  know 
that  the  process  is  void,  it  will  afford  a  protection  to  the 
person  who  serves  it.^ 

Now  a  writ  will  be  void  (1)  if  it  be  materially  defective 
in  language  ;  an  example  of  which  may  be  seen  in  the 

been  let  to  hail  in  the  wrong  county,  and  then  released  from  custody  ; 
and,  in  an  action  by  him  for  malicious  prosecution,  it  was  held  that  the 
plaintiff  was  still  liable  to  arrest  under  the  original  warrant,  and  that, 
therefore,  the  proceedings  not  being  terminated,-  the  action  could  not 
be  maintained. 

1  Doyle  V.  Russell,  30  Barb.  300.  2  Id. 

3  Tarlton  v.  Fisher,  2  Doug.  671 ;  Deyo  v.  Van  Valkenburgh,  5  Hill, 
242. 

10 


146  LAW  OF  TORTS.  [Paet  II. 

case  above  stated,  where  the  writ  failed  to  show  who  was 
intended. 

A  writ  will  be  void  (2)  if  the  whole  proceeding  in 
which  it  was  issued  was  beyond  the  jurisdiction  of  the 
court  granting  it.  For  example  :  The  defendant  executes 
a  warrant  against  the  plaintiff  for  the  collection  of.  road 
taxes  ;  the  warrant  being  issued  by  a  justice  of  the  peace 
who  has  no  authority  over  such  taxes.  The  writ  is  void, 
and  the  defendant  is  liable  for  false  imprisonment.^ 

A  writ  will  be  void  (3)  where  the  court,  though  having 
jurisdiction  over  the  subject-matter  of  a  proceeding,  has 
no  authority  to  institute  it  by  a  warrant.  For  example  : 
The  defendant,  an  officer,  executes  a  warrant  for  the  ar- 
rest of  the  plaintiff  in  a  complaint  for  the  non-payment  of 
wages.  The  court  issuing  the  writ  has  jurisdiction  over 
such  cases,  but  has  no  power  to  issue  a  warrant ;  a  sum- 
mons being  the  only  process  allowed.  The  writ  is  void, 
and  the  defendant  is  liable.^ 

In  all  of  these  cases,  the  writ  is  said  to  show  its  inva- 
lidity upon  its  face,  and  when  this  is  the  case  the  officer  is 
not  bound  to  serve  it.  The  effect  of  the  second  and  third 
of  these  rules  is  to  require  the  officer  to  know  the  general 
extent  of  the  jurisdiction  of  the  court  which  he  is  serving. 
Further  than  this  the  law  does  not  go  ;  and  in  other  cases 
the  officer  will  be  protected,  though  his  writ  were  voida- 
ble, and  liable  to  be  set  aside  for  error,  or  even  though  it 
were  actually  void.^  Cases  of  this  kind  are  always  within 
the  limits  of  the  court's  general  jurisdiction  ;  and  the  offi- 
cer is  not  liable,  since,  though  bound  to  know  the  extent 
of  the  court's  jurisdiction,  he  is  not  presumed  to  know  the 
nature  and  propriety  of  all  the  proceedings  in  a  cause.  If 
his  writ  do  not  indicate  its  invalidity  on  its  face,  the  officer 

1  Stephens  v.  Wilkins,  6  P.arr,  260. 

2  Shergold  v.  Holloway,  2  Strange,  1002. 

«  See  Deyo  v.  Van  Valkenburgh,  5  Hill,  242. 


Chap.  VII.  §  3.]      FALSE   IMPRISONMENT.  147 

is  ordinarily  safe,  though  the  writ   ought   not  to   have 
issued. 

To  put  the  case  in  the  form  of  a  more  general  proposi- 
tion, as  laid  down  upon  great  consideration,  a  ministerial 
officer  is  protected  in  the  execution  of  process,  whether 
the  same  issue  from  a  court  of  limited  or  of  general  juris- 
diction, though  such  court  have  not  in  fact  authority  in 
the  particular  instance,  provided  that  on  the  face  of  the 
process  it  appears  that  the  court  has  jurisdiction  of  the 
subject-matter,  and  nothing  appears  therein  to  apprise 
the  officer  that  the  court  has  hot  authority  to  order  the 
arrest  of  the  party  named  in  the  process.  For  example  : 
The  defendant,  a  constable,  arrests  the  plaintiff  under  a 
warrant  from  a  justice  of  the  peace  issued  upon  a  judg- 
ment against  the  plaintiff  in  an  action  within  the  jurisdic- 
tion of  the  court.  The  court  has  authority  in  such  cases 
to  issue  a  warrant,  but  in  this  particular  instance  the  suit 
has  not  been  instituted  by  the  issuance  of  the  necessary 
process  for  the  appearance  of  the  then  defendant,  now 
plaintiff.  The  defendant  has  violated  no  duty  to  the 
plaintiff,  and  is  not  liable,  though  the  court  had  no  au- 
thority to  issue  the  warrant  under  such  circumstances,  the 
process  not  indicating  the  fact.^  Again  :  The  defendant, 
an  officer,  arrests  the  plaintiff,  a  member  of  the  Legisla- 
ture, privileged  at  the  time  from  arrest,  the  writ  not  indi- 
cating the  fact.     This  is  not  a  false  imprisonment.^ 

The  clerk  of  the  court  (probably)  will  also,  like  the 
officer  who  serves  the  precept,  be  liable  in  case  he  made 
out  the  writ  in  a  defective  form.  He  has  done  that  which 
he  has  no  right  to  do,  and  is  therefore  forbidden  to  do ; 
and  he  must  accordingly  stand  upon  the  same  footing 
with  the  officer. 

1  Savacool  v.  Roughton,  5  "Wend.  170  ;  s.  c.  L.  C.  Torts,  241. 

2  Tarlton  v.  Fisher,  2  Doug.  671. 


148  LAW  OF  TORTS.  [Part  II. 

The  clerk  may  also  be  liable  when  the  officer  who  serves 
the  writ  is  not  liable.  And  this  will  be  the  case  when- 
ever the  writ,  though  regular  on  its  face  (and  hence  a 
justification  to  the  officer),  was  issued  without  orders  of 
the  court,  under  circumstances  in  which  such  issuance  is 
not  by  law  allowed.  For  example  :  The  defendant,  clerk 
of  an  inferior  court,  issues  a  writ  of  capias  on  which  the 
plaintiff  is  arrested,  without  the  presence  or  intervention 
of  the  court,  upon  a  default  of  the  plaintiff,  as  to  the 
granting  of  which  the  law  requires  that  the  judge  should 
exercise  certain  judicial  functions.  The  defendant  is 
guilty  of  a  breach  of  duty,  and  is  liable  to  the  plaintiff ; 
and  this  too  though  he  only  conformed  to  the  usual  prac- 
tice of  the  court  in  such  cases,  since  a  court  cannot  dele- 
gate its  judicial  functions.^ 

The  clerk  will  also  (probably)  be  liable,  like  both  the 
officer  and  the  judge,  when  the  writ,  issued  by  order  of 
the  court,  shows  upon  its  face  that  the  whole  cause  was 
without  the  jurisdiction  of  the  judge.  It  will  be  differ- 
ent, however,  if,  while  the  proceeding  was  within  the 
jurisdiction  of  the  court,  the  particular  act  merely,  com- 
manded by  the  court,  was  in  excess  of  its  jurisdiction, 
without  the  clerk's  knowledge.  The  clerk  is  a  merely 
ministerial  officer,  like  the  sheriff  or  constable,  and  is  no 
more  bound  than  such  officer  to  know  of  the  legality  of 
orders  of  the  court  within  its  jurisdiction.  For  example  : 
The  defendant,  clerk  of  a  county  court,  by  order  of  the 
judge  signs  and  seals  a  warrant  for  the  arrest  and  impris- 
onment of  the  plaintiff  for  a  period  of  thirty  days,  after  a 
certain  date,  upon  failure  to  conform  to  an  order  of  court ; 
when  the  order  of  commitment  should  have  required  an 
earlier  arrest.  The  defendant  is  not  liable,  though  the 
judge  (as  will  be  seen)  would  be.^ 

1  Andrews  v.  Marris,  1  Q.  B.  3. 

2  Dews  V.  Riley,  11  C.  B.  434. 


Chap.  VII.  §  3.]       FALSE   IMPRISONMENT.  149 

The  judge  of  an  inferior  court,  if  he  authorizes  the  ar- 
rest, is  liable  whenever  the  officer,  acting  in  strict  accord- 
ance with  his  precept,  is  liable  ;  provided  the  precept  be 
not  void  for  defective  language.  As  the  judge  does  not 
make  out  the  writ,  he  cannot  be  liable  for  such  defect ; 
and  the  clerk  is  not  his  agent  or  servant.^  In  other  cases, 
that  is,  when  the  court  has  not  jurisdiction  of  the  cause, 
the  proceeding  is  coram  non  judice  :  the  court  loses  its 
judicial  function,  and  the  judge  becomes  a  mere  private 
'citizen.^ 

But  more  than  this,  the  judge  may  be  liable  when  the 
officer  is  not.  This  will  be  true  whenever  the  judge  has 
plainly  exceeded  his  jurisdiction,  though  in  a  matter  not 
affecting  the  officer.  For  example :  The  defendant,  a 
justice  of  the  peace,  fines  the  plaintiff  under  the  game 
laws,  as  he  may  do,  and  then  sends  him  to  jail  without 
any  attempt  to  levy  the  penalty  upon  his  goods,  which  he 
has  no  right  to  do.  He  is  liable  for  false  imprisonment ; 
though  tlie  officer  who  executes  the  writ  is  not.* 

When  the  question  of  the  court's  jurisdiction  turns  on 
matter  of  fact,  it  is  laid  down  as  well  settled  that  a  judge 
of  a  court  of  record  with  limited  jurisdiction,  or  a  justice 
of  the  peace  acting  judicially,  with  special  and  limited  au- 

1  Carratt  v.  Morley,  1  Q.  B.  18. 

2  The  Marshalsea,  10  Coke,  68  b  ;  s.  c.  L.  C.  Torts,  278,  note. 

3  Hill  V.  Bateman,  2  Strange,  710.  The  arrest  was  justifiable,  so 
far  as  the  sheriff  was  concerned,  because,  though  in  the  particular 
instance  unauthorized,  it  was  still  within  the  power  of  the  justice  to 
grant  such  a  writ  in  a  proper  ease  ;  that  is,  after  an  ineffectual  atteinjjt 
to  levy  the  penalty  upon  the  party's  goods.  The  officer  was  not  bound 
to  know  whether  such  an  attempt  had  been  made.  Possibly  he  might 
be  thought  liable  had  he  known  that  no  such  attempt  had  been  made  ; 
and  this  knowledge  might  perhaps  have  been  easily  proved.  The  cases 
upon  this  point  are  conflicting.  See  Tierney  v.  Frazier,  57  Texas,  437, 
440,  441.  It  is  there  justly  considered  to  be  the  better  view  that  the 
officer's  knowledge  cannot'  be  taken  against  him.  Wilmarth  v.  Burt, 
7  Met.  257,  260,  261,  Shaw,  C.  J. 


150  LAW   OF   TORTS.  [Fart  II 

thority,  is  not  liable  to  an  action  of  trespass  (of  which  the 
action  for  false  imprisonment  is  an  example)  for  acting 
without  jurisdiction,  unless  he  had  -the  Ivnowledge,  or 
means  of  knowledge  of  which  he  ought  to  have  availed 
himself,  of  that  which  constitutes  the  defect  of  jurisdic- 
tion.^ And  it  lies  upon  the  plaintiff  in  every  case  to 
prove  the  fact.'^  For  example  :  The  defendant,  a  justice 
of  the  peace,  having  jurisdiction  to  grant  a  capias  in  cer- 
tain classes  of  civil  offences,  committed  within  his  dis- 
trict, orders  the  arrest  of  the  plaintiff,  on  suit  brought 
against  him  by  a  third  person,  for  an  offence  committed 
without  his  district.  The  defendant,  however,  has  no 
knowledge  that  the  act  was  committed  beyond  his  district, 
nor  is  he  put  upon  notice  of  the  fact  by  anything  arising 
before  the  arrest.  He  is  not  liable  for  a  false  imprison- 
ment,^ unless  he  acted  maliciously  and  without  probable 
cause.* 

When,  however,  the  question  of  jurisdiction  does  not 
depend  upon  the  proof  of  certain  facts,  but  upon  a  ques- 
tion of  plain  law,  the  judge  acts  at  his  peril ;  and  then  if 
he  order  the  arrest  of  an  individual  when  he  has  no  juris- 
diction, not  determinable  on  facts,  he  will  be  liable  for 
false  imprisonment.     For  example  :  The  defendant,  judge 

1  Calder  v.  Halket,  3  Moore,  P.  C.  28,  Parke,  B  ;  Pease  v.  Chaytor, 
32  L.  J.  Mag.  Cas.  121,  Blackburn,  J. 

^  Calder  v.  Halket  and  Pease  v.  Chaytor,  supra,  in  which  Carratt  v. 
Morley,  1  Q.  B.  18,  apparently  contra,  is  doubted. 

3  See  Pease  v.  Chaytor,  supra,  opinion  of  Blackburn,  J.  at  pp.  125, 
126,  from  which  this  example  is  framed.  Another  example  may  be 
seen  in  Lowther  v.  Radnor,  8  East,  113,  119.  A  distinction  must, 
however,  be  noticed  (which  was  pointed  out  in  Pease  v.  Chaytor)  be- 
tween a  proceeding  to  prevent  the  enforcement  of  a  judgment  in  such  a 
case  —  that  would  be  proper  —  and  an  action  against  the  judge  of  the 
court,  as  in  the  example. 

*  Id.  In  such  a  case,  the  suit  would  properly  be  an  action  for 
malicious  prosecution. 


CuAP.  VII.  §  3.]      FALSE   IMPRISONMENT.  151 

of  a  court  of  record  of  limited  jurisdiction,  directs  the 
arrest  of  tlie  plaintiff  for  contempt  of  the  process  of  the 
court,  and  commits  him  to  jail.  The  commitment  is  un- 
authorized, and  is  made  under  a  mistake  of  plain  law 
about  the  powers  of  the  defendant,  and  not  under  mis- 
take as  to  the  facts  ;  the  statute  requiring  that  the  process 
(under  the  circumstances)  should  have  been  issued  by  the 
court  of  another  county.     The  defendant  is  liable.-^ 

From  the  statement  of  the  foregoing  principles  and  ex- 
amples, it  will  be  seen  (1)  that  the  officer  alone  may  be 
liable  for  false  imprisonment ;  as  where  he  executes  his 
writ  upon  the  wrong  person,  without  the  latter's  fault : 
(2)  that  the  clerk  alone  may  be  liable  ;  as  where,  without 
direction  from  the  judge,  he  issues  a  precept  regular  in 
form,  and  within  the  jurisdiction  of  the  court,  but  which 
he  had  no  right  at  all  to  issue  :  (3)  that  the  judge  alone 
may  be  liable ;  as  where,  having  jurisdiction  over  the 
cause,  he  orders  the  issuance  of  the  warrant  under  cir- 
cumstances in  which  the  act  was  improper  :  (4)  that  the 
officer  and  the  clerk  may  alone  be  liable  ;  as  where  the 
writ  contains  substantially  defective  language  :  (5)  that 
all  three  may  be  liable  ;  as  where  the  whole  cause,  in  the 
course  of  which  the  writ  is  issuedy(at  the  command  of  the 
judge),  is  without  the  jurisdiction  of  the  court. 

This  is  not  all.  The  liability  for  a  false  imprisonment 
may  extend  to  the  attorney  at  whose  instance  the  proceed- 
ing was  begun,  and,  further  still,  to  his  client  who  author- 
ized him  to  begin  it.  Indeed,  this  will  always  be  the  case 
wherever  it  can  be  properly  said  that  the  wrongful  im- 
prisonment was  ordered  or  participated  in  by  the  client. 

When  the  judge  assumes  the  power  of  ordering  the 
warrant,  upon  a  statement  of  the  grounds,  the  act  (with 
the  exception  to  be  stated  presently)  is  his  own,  and  not 

1  Houlden  v.  Smith,  14  Q.  B.  841. 


152  LAW   OF   TORTS.  .    [Pakt  II. 

the  attorney's  or  his  client's  ;  ^  and  this,  too,  though  coun- 
sel were  urgent  for  the  issuance  of  the  writ ; '"  the  attorney 
or  client  has  not  set  a  ministerial  but  a  judicial  officer  in 
motion.^  If  this  be  the  extent  of  the  connection  of  the 
attorney  and  client  with  the  arrest,  neither  can  be  liable, 
whether  the  writ  was  granted  upon  a  mistaken  view  of  the 
law  by  the  judge  in  regard  to  his  jurisdiction  (in  which 
case  he  would  be  liable),  or  was  issued  in  a  materially 
defective  form  (in  which  case  the  clerk  and  the  officer 
would  be  liable)  ;  the  act  is  that  of  another.  Illustrations 
may  be  seen  in  the  examples  above  given.  Hence  the 
attorney  and  client  may  not  be  liable,  though  the  process 
was  void  on  its  face.* 

The  attorney,  and  his  client  with  him,  may,  however, 
become  liable  in  a  case  in  which  the  arrest  has  been  thus 
ordered  by  the  judge.  Such  a  result  will  come  about 
whenever  the  attorney  participates  in  any  manner  in 
effecting  the  arrest  after  the  issuance  of  the  improper 
warrant.     For  example :  The  defendants,  attorney   and 

Carratt  v.  Morley,  1  Q.  B.  18  ;  Williams  ;;.  Smith,  U  C.  B.  N.  s. 
596  ;  Smith  v.  Sydney,  L.  R.  5  Q.  B.  203. 

2  Cooper  V.  Harding,  7  Q.  B.  928. 

3  In  this  appears  a  clear  distinction  between  an  action  for  false 
imprisonment  and  one  for  malicious  prosecution.  'The  party  making 
the  charge  [before  a  magistrate]  is  not  liable  to  au  action  for  false  im- 
prisonment, because  he  lioes  not  set  a  ministerial  officer  in  motion,  but 
a  judicial  officer.  The  o])inion  and  the  judgment  of  a  judicial  officer 
are  interposed  between  the  chai-ge  and  the  imprisonment.'  Austin  v. 
Dowling,  L.  R.  5  C.  P.  534,  540,  Willes,  J. 

*  Carratt  v.  Morley,  1  Q  B.  18.  The  author  withdraws  his  criti- 
cism on  this  case,  made  in  his  Leading  Cases  on  Torts,  p.  280.  The 
client  had  done  nothing  but  to  ask  for  a  writ ;  and  the, court,  acting 
judicially,  granted  it.  The  act  was,  therefore,  the  act  of  the  judge, 
and  not  of  the  party.  The  latter,  to  be  liable,  must  either  have 
directed  the  execution  of  the  writ  after  its  issuance,  or  have  obtained 
it  from  the  court  in  an  irregular  manner,  or  have  participated  in  the 
execution  of  it. 


Chap.  VII.  §  3.]       FALSE   IMPRISONMENT.  153 

client  in  a  former  litigation  against  tlie  present  plaintiff, 
having  obtained  an  erroneous  warrant  against  the  latter 
from  the  judge,  the  attorney  personally  puts  the  precept 
into  the  officer's  hands,  and  directs  him  to  serve  it.  The 
defendants  are  both  liable ;  the  attorney  because  of  his 
personal  interference,  the  client  because  bound  by  the  act 
of  his  attorney  in  the  ordinary  course  of  the  litigation.^ 
Again :  The  defendant,  an  attorney,  indorses  with  his 
name  and  residence  an  invalid  warrant,  issued  against  the 
plaintiff.  This  makes  him  a  participant  in  the  false  im- 
prisonment which  follows  ;  -  and  his  client  also. 

When  the  warrant  is  issued  through  misconduct  of  the 
attorney,  or  material  misrepresentations  (even  though  not 
fraudulent),  or  even  through  his  mistake,  the  act  is  not 
the  act  of  the  judge,  unless  he  had  no  jurisdiction  to 
grant  the  process,  but  of  the  attorney,  and  of  his  client 
whom  he  represents.^  The  consequence  is,  that  the  last 
named  are  both  liable  for  false  imprisonment  upon  the 
execution  of  the  warrant ;  even  though  they  take  no 
further  steps  in  the  matter  than  those  involved  in  obtain- 
ing the  same.*  For  example  :  The  defendants,  attorney 
and  client  in  a  foi-mer  suit  against  the  present  plaintiff, 
obtain  a  warrant  therein  for  the  latter's  arrest  upon  ma- 
terial misrepresentations  made  in  an  affidavit  upon  which 
the  warrant  is  awarded,  on  account  of  which  misrepre- 
sentations the  warrant  is,  after  the  plaintiff's  arrest,  set 

1  Barker  v.  Bialiam,  2  W.  Black.  866  ;  s.  c.  L.  C.  Torts,  235. 

2  Green  v.  Elgie,  5  Q.  B.  99. 

8  Williams  v.  Smith,  14  C.  B.  n.  s.  596  ;  Codrington  v.  Lloyd,  8 
Ad.  &  E.  449  ;  Collett  v.  Foster,  2  Hurl.  &  N.  356.  See  Davies  v. 
Jenkins,  11  M.  &  W.  745. 

*  This  is  what  is  meant  when  it  is  said  that  the  attorney  and  his 
client  are  liable  in  case  of  irregularity  in  obtaining  the  writ.  Irregu- 
larity (in  this  sense)  is  the  act  of  the  party  and  not  of  the  court.  See 
Codrington  v.  Lloyd,  8  Ad.  &  E.  449. 


154  LAW  OF  TORTS.  [Part  II. 

aside.  They  are  both  liable.^  Again  :  The  defendant,  by 
his  attorney,  in  a  former  suit  against  the  now  plaintiff,  pro- 
cures the  arrest  therein  of  the  last  named  under  a  writ 
issued  by  mistake  against  a  person  not  bearing  the  name 
of  the  present  plaintiff.  This  is  a  false  imprisonment,  and 
the  defendant  is  liable,  although  the  person  intended  was 
arrested.^  Again  :  The  defendants,  attorney  and  client 
in  a  former  civil  action  against  the  now  plaintiff,  in  which 
they  obtained  judgment  against  him,  obtain  a  warrant 
for  the  arrest  of  the  plaintiff  by  virtue  of  the  judgment, 
after  a  discharge  therefrom,  of  the  plaintiff  by  proceed- 
ings in  insolvency,  of  which  the  defendants  had  notice. 
They  are  liable  for  false  imprisonment ;  unless  it  can  be 
shown  that  the  discharge  was  obtained  by  fraud. ^ 

It  will  thus  be  seen  that  there  may  be  cases  in  which 
all  the  parties  named  will  be  jointly  liable,  client,  attor- 
ney, officer,  clerk,  and  judge.  Such  will  be  the  result 
where  the  attorney  personally  directs  the  officer  to  serve 
a  writ  upon  the  plaintiff,  issued  by  the  judge's  order,  in  a 
civil  cause,  wholly  beyond  the  jurisdiction  of  his  court. 

There  is  a  structural  distinction  between  civil  and  crim- 
inal cases ;  the  parties  are  different.  A  civil  suit  is  a 
litigation  between  individuals  ;  a  criminal  suit  is  a  litiga- 
tion between  the  public  and  an  individual.     The  prose- 

1  Williams  v.  Smith,  14  C.  B.  N.  s.  596.  The  action  was  not 
sustained  in  this  second  suit  because  the  misrepresentations  were  not 
material. 

2  See  Jarmain  v.  Hooper,  6  Man.  &  G.  827. 

3  Deyo  V.  Van  Valkenbuigh,  5  Hill,  242.  This  is  the  exception 
alluded  to  above,  by  which  the  attorney  and  client  are  liable,  though 
the  judge  has  been  merely  asked  to  grant  the  warrant.  But  it  was 
misconduct  to  ask  for  the  warrant  when  it  was  known  that  the  judg- 
ment had  been  discharged,  unless  proof  could  be  brought  that  the  dis- 
charge was  fraudulent.  The  judge,  having  no  jurisdiction  to  grant  the 
warrant  in  such  a  case,  would  also  be  liable,  it  seems. 


Chap.  VII.  §  3.]       FALSE   IMPRISONMENT.  155 

cutor  in  a  criminal  action  does  not  represent  the  plaintiff 
in  a  civil  suit.  A  civil  proceeding  is  instituted  in  the 
interest  and  for  the  benefit  of  the  plaintiff,  and  is  under 
his  control  throughout;  the  plaintiff  is  '  dominus  litis.' 
False  steps  and  misconduct  on  his  behalf  in  the  course 
of  the  litigation  will  therefore  bind  him,  as  has  already 
been  seen.  The  prosecutor  of  crime,  however,  is  not  a 
party  to  the  litigation  instituted  by  him.  The  proceed- 
ing is  not  carried  on  primarily  in  his  interest ;  and  he  has 
no  control  over  its  course.  The  consequence  is,  he  can- 
not be  bound  by  the  action  of  the  attorney-general  or 
other  prosecuting  officer.  He  may,  however,  bind  him- 
self, and  become  liable  for  a  false  imprisonment  by  acts 
of  his  owm,  or  of  counsel  whom  he  may  employ  to  assist 
the  attorney-general.  If  the  prosecutor  or  his  attorney 
should  personally  direct  the  service  of  invalid  process, 
whether  void  or  only  voidable,  he  would  be  liable  to  the 
party  arrested.^ 

Before  an  action  for  false  imprisonment  under  process 
of  court  can  be  maintained,  it  is  necessary  that  the  pro- 
cess should  be  set  aside,  unless  it  appear  to  be  absolutely 
void.  For  if  the  process  be  merely  voidable,  it  is  valid 
until  quashed ;  and  hence  the  arrest  must,  till  then,  be 
legal.  If,  however,  the  process  be  absolutely  void,  and 
the  action  be  brought  against  the  proper  party  or  parties, 
it  is  not  necessary  (probably),  either  in  cases  of  civil  or 
of  criminal  arrest,  to  have  it  set  aside  before  suing  for 
false  imprisonment.  For  example  :  The  defendant  pro- 
cures the  arrest  of  the  plaintiff  on  a  warrant  issued  upon 
a  judgment  which  the  former  knows  to  have  been  dis- 
charged ;  and  the  plaintiff  sues  for  false  imprisonment 
without  first  having  the  process  set  aside.     The  action  is 

1  Hopkius  V.  Crowe,  4  Ad.  &  E.  774. 


156  LAW  OF  TORTS.  [Part  IL 

rnaintainable  ;  the  process  being  absolutely  void.-'  Again  : 
The  defendant,  a  justice  of  the  peace,  procures  the  arrest 
of  the  plaintiff  upon  four  convictions  before  him  of  baking 
bread  on  one  and  tlie  same  Sunday  ;  the  law  permitting 
but  one  conviction  in  such  a  case.  The  defendant  is  lia- 
ble for  false  imprisonment,  though  the  wrongful  convic- 
tions be  not  first  quashed."-^ 

In  both  civil  and  criminal  cases,  however,  the  action  is 
to  be  distinguished  from  a  suit  for  malicious  prosecution. 
The  process  under  which  an  imprisonment  was  made  may 
have  been,  as  regards  the  party  or  parties  sued  for  the 
tort,  either  void  or  voidable ;  ^  and,  in  such  a  case,  the 
action  is  maintainable  without  proof  of  malice,  or  of 
want  of  probable  cause,  or  of  the  termination  of  the 
prosecution.  In  an  action  for  malicious  prosecution, 
however,  it  matters  not  whether  the  writ  was  void,  void- 
able or  valid ;  the  suit  is  for  an  unlawful  prosecution,  and 
to  make  such  a  case  the  plaintiff  must  prove  the  set  of 
facts  just  stated. 

§  4.    Of  Arrests  without  Warrant. 

It  is  not  necessary,  however,  in  all  cases,  that  an  arrest 
for  an  infraction  of  the  law  should  be  made  under 
authority  and  by  command  of  a  warrant.  There  are  occa- 
sions on  which  the  utmost  promptness  of  action  is  required 
for  the  attainment  of  the  ends  of  justice  in  the  apprehen- 

1  Deyo  V.  Van  Valkenburgh,  5  Hill,  242. 

2  Crepps  V.  Durden,  2  Covvp.  640.  In  this  case  there  was  no 
arrest,  but  merely  a  levy  on  the  plaintiti''s  goods  for  the  amount  of  the 
penalty ;  but  the  principle  would  be  the  same. 

^  It  will  be  noticed  that  to  sustain  an  action  against  the  officer  who 
served  the  writ,  or  against  the  clerk,  the  writ  must  have  been  void  on 
its  face  ;  while  it  is  enough  in  this  respect,  to  sustain  an  action  against 
the  judge  or  attorney  and  client,  that  the  writ  was  only  voidable. 


CiiAP  VII.  §  4.]       FALSE   IMPRISONMENT.  157 

sion  of  law-breakers  ;  and  the  necessities  of  society  have 
in  such  cases  furnished  a  justification  for  the  arrest  of 
offenders  without  a  formal  warrant  of  a  court  of  justice. 
But  the  law  does  not  encourage  the  making  of  arrests 
in  this  manner ;  on  the  contrary,  in  the  interest  of  liberty, 
it  prefers  a  slower  and  more  deliberate  proceeding  by  war- 
rant, issued  upon  solemn  oath  concernmg  the  facts,  in  all 
cases  in  which  the  administration  of  justice  can  thus  be 
efficiently  carried  out. 

The  occasions  on  which  arrests  without  a  warrant  are 
considered  justifiable  upon  the  above-stated  ground  are 
well  defined.  In  the  first  place,  it  must  be  well  under- 
stood that  the  right  to  make  such  arrests  is  confined  alto- 
gether to  infractions  of  the  criminal  law.  In  no  case 
can  an  ofllicer  make  an  arrest  in  a  civil  cause  without  the 
protection  of  a  warrant.  It  may  be  true,  as  has  already 
been  stated,  that,  in  cases  of  the  release  of  a  prisoner 
arrested  on  process  in  a  civil  action,  the  oflScer  may  re- 
take the  party  without  obtaining  a  special  warrant  for 
this  particular  purpose  ;  but  that  is  because  he  has  already 
a  warrant,  which  is  still  in  force.  Hence,  the  officer  does 
make  the  arrest  under  a  writ ;  and  he  must  justify  his 
act  under  that  writ. 

The  first  case  to  be  mentioned  in  which  an  arrest  can 
be  made  without  a  warrant,  is  when  the  arrest  is  made 
upon  the  spot,  at  the  time  of  the  breach  of  the  peace. 
Such  a  case  comes  directly  within  the  reason  above  men- 
tioned, namely,  the  necessities  of  society  ;  nor  could  there 
be  any  use  of  requiring  an  affidavit  and  warrant  in  such  a 
case,  even  if  the  delay  might  not  be  fatal.  The  right 
thus  to  arrest  on  the  spot  applies  equally  to  all  breaches  of 
the  peace,  whether  the  act  be  a  crime  or  a  misdemeanor. 

An  arrest  without  warrant  may  also  be  made  by  an  offi- 
cer of  the  law,  qualified  for  the  making  of  arrests,  upon 
'  suspicion  of  felony,'  to  use  a  common  expression  of  the 


158  LAW   OF  TORTS.  I  Part  II. 

books.  The  meaning  of  this  is,  that  if  in  an  action  for  false 
imprisonment,  without  warrant  (that  is,  because  without 
warrant),  the  officer  can  show  that,  though  no  felony  was 
in  fact  committed,  he  had  probable  cause  to  suppose  that 
the  prisoner  had  committed  such  a  crime,  he  has  violated 
no  duty  to  the  plaintiff  in  thus  making  the  arrest.  For 
example :  The  defendant,  a  constable,  haviug  probable 
cause  to  believe  that  the  plaintiff"  is  guilty  of  the  felony 
of  receiving  or  aiding  in  the  concealment  of  stolen  goods, 
arrests  him  without  a  warrant,  and  conveys  him  to  jail, 
where  he  detains  the  prisoner  until  he  can  make  applica- 
tion to  a  magistrate  for  a  wai'rant  against  him  as  a  re- 
ceiver of  stolen  goods.  The  warrant  is  refused,  and 
the  prisoner  at  once  discharged.  The  defendant  is  not 
liable.  1 

■  The  officer's  suspicion  must,  however,  as  above  inti- 
mated, be  a  reasonable  ground  to  suppose  the  prisoner 
guilty  of  a  felony  ;  that  is,  it  must  be  such  a  strong  sus- 
picion as  would  justify  a  man  of  caution  in  entertaining  a 
belief  of  the  party's  guilt.  If  the  circumstances  do  not 
warrant  such  a  belief,  even  though  in  fact  a  felony  has 
been  committed,  the  officer  violates  his  duty  to  the  plain- 
tiff by  arresting  him  without  process  of  court. -^  For  exam- 
ple :  The  defendant,  a  constable,  arrests  and  imprisons 
the  plaintiff,  without  process,  under  tlie  following  circum- 
stances :  The  cart  of  the  plaintiff,  a  butcher,  is  passing 
along  the  highway,  when  a  person,  in  the  habit  of  attend- 
ing fairs,  stops  the  cart  and  says  to  the  officer  (defendant), 
'  These  are  my  traces,  which  were  stolen  at  the  peace- 

1  Rohan  v.  Sawin,  5  Cusli.  281. 

2  The  process  would  justify  the  officer  in  such  a  case,  since  the 
granting  of  it  would  be  a  declaration  of  the  judge  that  there  exists 
probable  cause  to  believe  the  party  guilty.  The  term  '  probable  cause  ' 
here,  as  in  the  chapter  on  Malicious  Prosecution,  is  used  for  '  reason- 
able and  probable  cause.' 


Chap.  VII.  §  4  ]        FALSE   IMPRISONMENT.  159 

rejoicing  last  year.'  The  defendant  asks  the  plaintiff 
how  he  came  by  the  traces-.  The  plaintiff  replies  that  he 
saw  a  stranger  pick  them  up  in  the  road,  and  bought  them 
of  him  for  a  shilling  ;  whereupon  he  is  taken  into  custody, 
and,  on  examination  before  a  magistrate,  discharged. 
This  doq^  not  show  probable  cause  for  the  arrest,  and  the 
defendant  is  hable.^ 

In  the  authority  from  which  this  example  is  taken,  the 
whole  case  was  given  to  the  judges,  with  power  to  act  as 
a  jury  so  far  as  might  be  necessary  for  the  decision  of 
th,e  question  before  them.  It  therefore  does  not  appear 
from  the  decision,  whether  the  question  of  probable  cause 
is  to  be  considered  as  a  question  for  the  judge  or  for  the 
jury  ;  and  the  point  was  expressly  left  undecided  by  the 
judges.  .  -  • 

The  question  has,  indeed,  been  one  of  some  difficulty. 
In  some  of  the  cases  it  has  been  tacitly  assumed  that  the 
jury  must  determine  whether  the  officer  had  probable  cause 
for  taking  the  plaintiff  into  custody  ;  -  in  otliers,  that  it  is 
for  the  court  to  say  whether  the  facts  proved  show  proper 
cause. ^  The  point  has,  however,  been  decided  in  Eng- 
land in  accordance  with  this  latter  view,  though  not  with- 
out expressions  of  regret ;  ^  making  tlie  rule  to  conform 
to  that  of  actions  for  malicious  prosecution. 

If  the  analogy  furnished  by  the  law  of  actions  for  ma- 
licious prosecution  is  to  be  fully  carried  out,  and  it  appears 
reasonable  that  it  should  be,  it  will  also  be  necessary  for 
the  officer  to  show  that  this  reasonable  ground  for  making 
the  arrest  consisted  of  facts  within  his  own  possession  at 
the  time  of  the  arrest,  and  that  he  cannot  justify  on  facts 

>  Hogg  V.  Ward,  3  H.  &  N    417  ;  s.  c.  L.  C.  Torts,  252. 

2  Beckwith  v.  Philby,  6  B.  &  C.  635  ;  Rohan  v.  Sawin,  5  Cash 
281  ;  Brockvvay  v.  Crawford,  3  Jone.s,  433. 

3  Hill  V.  Yates,  8  Taiant.  182  ;  Davis  v.  Russell,  5  Bing.  354. 

4  Lister  v.  Ferryman,  L.  R.  4  H.  L.  521,  531,  538,  539. 


160  LAW  OF  TORTS.  [Part  II. 

which  afterwards  came  to  his  notice.  Nor,  on  the  other 
hand,  if  his  justification  lie  in  the  facts  before  him  at  the 
time  of  taking  the  party  into  custody,  will  his  defence  be 
overturned  by  evidence  of  facts  indicating  innocence,  that 
came  to  his  notice  after  the  imprisonment,^ 

At  common  law,  no  valid  arrest  without  a  warrant  can 
be  made  for  a  misdemeanor,  except  on  the  spot."^  To  ar- 
rest a  man,  without  process,  on  suspicion  that  he  has 
committed  a  misdemeanor,  although  upon  probable  cause 
for  his  arrest,  is  a  breach  of  duty.  For  example  :  The 
defendant,  a  constable,  arrests  the  plaintiff  without  a  writ 
on  the  statement  of  J.  M.,  that  the  plaintiff  has  committed 
the  offence  of  perjury,  by  wilfully  and  corruptly  making 
a-  false  affidavit  in  a  judicial  proceeding  before  the  Honor- 
able W.  W.,  judge  of  a  court,  and  he  takes  the  plaintiff 
into  custody  upon  this  charge,  at  the  direction  of  J.  M. 
He  is  liable  to  the  plaintiff  for  a  false  imprisonment ;  ' 
though  he  would  not  have  been,  had  the  offence  charged 
been  a  felony. 

And  the  arrest  must  not  only  have  been  made  upon  the 
spot ;  it  must  also  have  been  made,  in  the  case  of  an  ac- 
tual breach  of  the  peace,  before  the  breach  has  entirely 
ceased.  For  example  :  The  defendant,  a  constable,  takes 
the  plaintiff  into  custody  without  a  warrant  under  the  fol- 
lowing circumstances  :  The  plaintiff  had  been  making  a 
disturbance  about  certain  premises  in  the  night-time,  and 
had  refused,  on  request  of  the  defendant,  to  desist.  Per- 
ceiving that  the  defendant  intends  to  arrest  him,  the  plain- 
tiff flees  and  is   pursued,  overtaken,  and    arrested ;  the 

^  See  ante,  pp.  62,  et  seq. 

2  "Whether  and  how  far  this  may  have  been  changed  in  regard  to 
the  duties  of  policemen  in  large  cities  cannot  here  be  considered. 

3  Bowditch  V.  Balchin,  5  Ex.  378.  See  Commonwealth  v.  Carey, 
12  Cush.  246,  252  ;  Commonwealth  v.  McLaughlin,  Id.  615,  618. 


CiiAP.  VII.  §  4.]       FALSE   IMrRISONMENT.  IGl 

disturbance  haviug  previously  ceased.     Tlie  defendant  is 
liable.^ 

In  the  case  of  affrays,  however,  an  arrest  may  be  made 
without  a  warrant  not  only  during  the  actual  breach  of  the 
peace,  but  so  long  as  the  offender's  conduct  shows  that 
the  public  peace  is  likely  to  be  endangered  by  his  acts. 
Indeed,  while  those  are  assembled  together  who  have 
been  committing  acts  of  violence,  and  the  danger  of  re- 
newal continues,  tlie  affray  may  be  said  to  continue  ;  and 
during  the  aff'ray,  thus  understood,  the  officer  may  arrest 
the  offender  not  only  on  his  own  view,  but  even  on  the  iu' 
formation  or  complaint  of  another.  This  is  true  even  of 
an  arrest  by  a  private  citizen.^  For  example :  The  de- 
fendant arrests  the  plaintiff  without  process  under  the 
following  circumstances :  The  plaintiff'  had  entered  the 
defendant's  shop  to  make  a  purchase,  when  a  dispute 
arose  between  the  plaintiff  and  a  servant  of  the  defendant 
resulting  in  an  affray  between  them.  The  defendant, 
coming  into  the  shop  during  the  affray,  orders  the  plaintiff 
to  leave,  which  he  refuses  to  do  ;  the  violence  having  then 
ceased,  though  there  is  still  danger  of  a  renewal  of  the 
affray.  The  defendant  now  gives  the  plaintiff  into  the 
custody  of  an  officer.  This  is  no  breach,  of  duty  to 
the  plaintiff.^ 

The  example  given  leads  to  the  consideration  of  the  na- 
ture of  the  right  of  a  private  citizen  to  arrest  offenders 
without  process  of  court ;  for  it  is  (probably)  lawful  for 

1  Compare  Baynes  v.  Brewster,  2  Q.  B.  375,  where  the  (defendant, 
on  such  facts,  was  a  private  citizen  ;  but  the  rule  would  have  been  the 
same  had  he  been  an  officer,  as  the  language  of  Mr.  Justice  Williams  in 
that  case  shows. 

2  Timothy  v.  Simpson,  1  Cromp.  M.  &  R.  757  ;  s.  c.  L.  C.  Torts, 
257  ;  Baynes  v.  Brewster,  2  Q.  B.  375,  386. 

3  Timothy  v.  Simpson,  supra. 

11 


162  LAW  OF  TORTS.  [Part  II. 

such  a  person  to  make  an  arrest  upon  a  warrant  under  the 
same  circumstances  in  which  an  officer  could  do  so. 

The  rule  of  law  in  regard  to  arrests  for  misdemeanors 
by  private  citizens  is  the  same  as  prevails  concerning  offi- 
cers ;  they  are  entitled  to  make  the  arrest  without  process 
while  the  breach  of  the  peace  is  going  on,  or  (in  accord- 
ance with  the  explanation  given)  still  continues.  And  a 
private  citizen  has  no  right  to  make  an  arrest,  without 
process,  for  a  misdemeanor  after  its  termination,  though 
the  breach  of  peace  was  committed  about  his  own 
premises.-^ 

In  regard  to  felonies,  the  rights  of  officers  and  private 
citizens  are  ditferent.  While  an  officer  can  arrest  without 
a  warrant  upon  probable  cause,  though  no  felony  has  been 
committed,  a  private  citizen  can  safely  make  an  arrest 
without  a  warrant  only  when  ( 1 )  the  felony  charged  has 
actually  been  committed,  and  (2)  there  was  probable 
cause  for  supposing  the  party  arrested  to  be  guilty.''' 

1  Bayues  v.  Brewster,  2  Q.  B.  375,  386. 

2  Allen  V.  Wright,  8  Car.  &  P.  522  ;  s.  c.  L.  C.  Torts,  265.  In 
Commonwealth  v.  Carey,  12  Cnsh.  246,  251,  Chief  Justice  Shaw,  in  a 
dictum,  states  the  rule  thus  :  '  A  private  citizen,  who  arrests  another  on 
a  charge  of  felony,  does  it  at  the  peril  of  being  able  to  prove  a  felony 
actually  committed  by  the  pei'son  arrested.'  But  that  appears  to  be  a 
mistake. 


CHAPTER  VIII. 

ENTICEMENT  AND  SEDUCTION. 
§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  forbear 
to  entice  away,  harbor,  or  seduce  B's  child  and  servant 
capable  of  service,  or  B's  ward,  towards  whom  B  stands 
in  loco  parentis,  or  B's  wife. 

Interruption  of  the  relation  of  master  and  servant  in 
the  ordiuar}^  sense  has  been  considered  in  chapter  iv. 
There  the  wrong  turns  upon  malice.  In  the  present 
chapter  we  have,  inter  alia,  the  relation  .of  master  and 
servant  in  a  special  sense,  namely  between  parent  and 
child.  Here  the  wrong  does  not  turn  upon  malice  ;  the 
duty  is  '  absolute.' 

Whether  there  is  any  legal  difference  between  the 
■wrongs  of  enticing  away,  harboring,  and  seduction  in 
regard  to  a  parent's  right  of  action  where  his  child  was 
under  age  at  the  time  has  not  been  determined.  The 
'  statement  of  the  duty '  assumes  that  there  is  none.  If 
the  child  was  of  age,  no  action  for  harboring  or  (prob- 
ably) for  enticing  away,  alone,  could  be  maintained, 
unless  there  was  an  actual  contract  for  service,  because 
no  right  would  be  infringed.  Seduction  would  make  a 
different  case,  because  of  the  disgrace  ;  there  would  be 
breach  of  a  right  in  such  a  case,  the  right  to  an  un- 
tarnished  name. 


164  LAW  OF  TORTS.  [Part  II. 

§  2.     Of  Parent  and  Child. 

A  parent's  right  of  action  against  one  who  has  seduced 
or  enticed  away  his  child  is  the  right  of  action  of  a  mas- 
ter ;  that  is,  it  turns  upon  the  existence  of  the  relation  of 
master  and  servant,  not  upon  parental  authority  or  kin- 
ship. The  right  of  action  accordingly  lasts  as  long  as 
that  relation  lasts  ;  it  does  not  terminate  necessarily  when 
the  child  becomes  of  age.-^ 

In  England  the  parent's  right  of  action  terminates  when- 
ever the  child  leaves  the  parent's  house  with  intention 
not  to  return.^  That  rule  does  not  obtain  in  this  country. 
The  father's  right  of  action  here  does  not  depend  upon 
the  will  of  the  child  ;  notwithstanding  the  child's  absence 
from  her  father's  house  at  the  time  of  the  seduction, 
though  she  intends  not  to  return,  the  father's  right  of 
action  is  not  affected.  This  is  true  though  she  was  at  the 
time  in  the  service  of  another  with  her  father's  consent. 
For  example :  The  defendant  seduces  the  plaintiff's 
daughter  under  the  following  circumstances  :  The  daugh- 
ter, at  the  age  of  nineteen,  goes,  with  the  consent  of  her 
father  the  plaintiff,  to  live  with  a  relative,  for  whom  she 
works  when  she  pleases,  receiving  pay  for  her  labor. 
While  there,  and  still  under  age,  she  is  seduced  and  got 
with  child  by  the  defendant,  and  returns  to  her  father 
and  is  cared  for.  She  had  no  intention,  but  for  the  se- 
duction, to  return.     The  defendant  is  liable.^ 

That,  however,  is  the  extent  of  the  American  rule.  If 
the  power  of  the  parent  over  the  child  was  gone  at  the 
time  of  the  seduction,  whether  by  his  own  act  or  by  act  of 

1  Infra,  p.  166. 

2  Dean  v.  Peel,  5  East,  45.  See  Griffiths  v.  Teetgen,  15  C.  B.  344 ; 
Manley  v.  Field,  7  C.  B.  n.  s.  96  ;  Hedges  v.  Tagg,  L.  R.  7  Ex.  283. 

3  Martin  v.  Payne,  9  Johns.  387  ;  s.  c.  L.  C.  Torts,  286. 


Chap.  VIII.  §  2.]      ENTICEMENT  AND   SEDUCTION.        165 

the  Itiw,  the  seducer  has  violated  no  legal  duty  to  him  ; 
though  there  has  been  some  conflict  of  authority  in  regard 
to  the  application  of  this  doctrine  to  the  case  of  a  return 
of  the  daughter  after  the  seduction,  a  point  to  be  referred 
to  later. 

It  is  considered,  however,  that,  if  the  parent's  control 
over  his  child  was  divested  by  fraud,  he  may  treat  it,  on 
discovering  the  fraud,  as  never  having  been  abandoned, 
and  maintain  an  action  against  the  seducer.  For  exam- 
ple :  The  defendant  hires  the  plaintiff's  daughter  from  his 
service  with  intent  to  seduce  her,  and  by  this  means  ob- 
tains possession  of  her  person,  and  seduces  her.  The 
plaintiff  is  entitled  to  recover  as  if  the  daughter  had  been 
seduced  while  in  his  own  service. 

There  must  have  been  ability  to  render  service  at  the 
time  of  the  seduction  ;  ^  though  whether  actual  services 
were  being  rendered  or  not,  or  what  the  extent  or  value 
of  the  services,  has  nothing  to  do  with  the  right  of  action,^ 
and  in  many  cases  may  have  little  if  anything  to  do  with 
the  amount  recoverable.  Loss  of  service  is  indeed  of  the 
gist  of  the  action  ;  but  when  ability  to  perform  service  has 
been  shown,  damages  may  be  given  not  merely  for  the 
actual  loss  of  service  but  also  for  the  disgrace  inflicted 
upon  the  plaintiff  and  his  family,^  the  amount  which  may 
be  given  varying  more  or  less  with  the  station  in  life  of 
the  parties  and  being  mainly  within  the  judgment  of  the 

jui-y-* 

The  father's  right  of  action  continues,  as  has  already 
been  intimated,  after  the  daughter  has  come  of  age,  if  the 

1  Hall  V.  Hollander,  4  B.  &  C.  660  ;  arte,  p.  134. 

2  See  Gruinell  v.  Wells,  7  Man.  &  G.  1044,  note  to  the  case. 

3  Terry  v.  Hutchinson,  L.  E.  3  Q.  B.  .599  ;  Bartley  v.  Richtmyer, 
4  Comst.  38  ;  L.  C.  Torts,  294. 

*  The  only  limit  upon  their  action  as  to  the  amount,  as  in  many 
other  cases,  is  that  it  must  not  be  excessive,  under  all  the  facts  of  the 
case  taken  together. 


166  LAW  OF  TORTS.  [Pakt  II. 

relation  of  master  and  servant  is  still  in  operation  between 
them.  If  the  parent  coutiuue  to  exercise  authority  over 
the  daughter  after  her  majority,  and  she  continue  to  sub- 
mit, she  is  still  his  servant,  though  not  under  an  actual 
engagement  to  serve  him  ;  and  seduction  under  such  cir- 
cumstances is  a  breach  of  legal  duty  to  the  parent.  For 
example  :  The  defendant  seduces  the  plaintiff's  daughter, 
aged  twenty-two  years.  Prior  to  and  at  the  time  of  the 
seduction,  the  daughter  has  been  living  part  of  the  time 
with  her  brother,  who  resides  about  a  mile  from  her 
father's  house,  and  part  of  the  time  with  her  father.  She 
has  not  received  wages  from  her  brother,  and  when  at 
home  has  worked  for  her  mother,  the  plaintiff  buying  her 
clothing.  The  daughter  is  the  plaintiff's  servant,  and  the 
defendant  is  liable.^ 

It  has  been  held  in  England  that  the  seduction  should  be 
followed  by  pregnancy  or  disease  to  entitle  the  plaintiff  to 
recover. 2  The  American  rule  is,  that  where  the  proper 
effect  of  the  connection  is  an  incapacity  to  labor,  by  rea- 
son of  which  the  plaintiff  loses  the  services  of  his  daughter 
and  servant,  the  loss  of  such  services  entitles  the  plaintiff 
to  recover  against  the  seducer.  The  same  principle  which 
gives  a  master  an  action  where  the  connection  causes 
pregnancy  applies  to  the  case  of  sexual  disease,  and,  in- 
deed, to  all  cases  where  the  proper  consequence  of  the  act 
of  the  defendant  is  a  loss  of  health  resulting  in  an  inca- 
pacity for  such  service  as  could  have  been  rendered  before. 
For  example  :  The  defendant  seduces  the  plaintiff's  minor 
daughter,  by  reason  of  which,  without  becoming  pregnant 
(or  being  affected  with  sexual  disease) ,  she  suffers  gen- 

1  Sutton  V.  Huffman,  3  Vroom,  58  ;  Rist  v.  Faux,  4  Best  &  S.  409; 

Ex.  Ch, 

2  Eager  v.  Grimwood,  1  Ex.  61.     But  see  Evans  v.  Walton,  L.  R. 

2  C.  P.  615,  617. 


Chap.  VIII.  §  2.]      ENTICEMENT  AND   SEDUCTION.         167 

eral  injury  in  health,  so  that  it  becomes  necessary  for  the 
plaintiff  to  send  her  away  for  her  recovery  ;  whereby  he 
incurs  expense  and  loses  his  daughter's  services.  The 
defendant  is  liable.^ 

If,  however,  the  loss  of  health  be  caused  by  mental 
suffering  not  the  necessary  effect  of  the  seduction,  es- 
pecially if  produced  by  subsequent  causes,  the  loss  of 
service  is  not  the  effect,  in  contemplation  of  law,  of  the 
defendant's  act ;  and  hence  the  action  cannot  be  main- 
tained. For  example  :  The  defendant  seduces  the  plain- 
tiff's minor  daughter,  and  subsequently  abandons  her,  in 
consequence  of  which  she  suffers  such  distress  of  mind  as 
to  bring  illness  upon  her,  and  incapacitate  her  for  per- 
forming services  for  the  plaintiff ;  no  pregnancy  or'  dis- 
ease resulting  by  du'ect  consequence  of  the  seduction. 
The  defendant  is  not  liable  to  the  plaintiff.^ 

If  a  loss  of  service  follow  as  the  proper  effect  of  the 
defendant's  act,  it  is  held  to  be  immaterial  that  he  accom- 
plished his  purpose  without  resorting  to  seductive  arts. 
The  willingness  of  the  daughter  cannot  affect  the  parent's 
right  of  action  ;  ^  though  the  ready  consent  of  the  young 
woman  might  be  ground  for  mitigation  of  damages,*  es- 
pecially if  she  was  notoriously  a  loose  character. 

What  has  been  said  in  the  preceding  paragraphs  con- 
cerning the  parent's  right  of  action  for  loss  of  service 
must  be  understood  of   the  father's  claim  to  damages. 

1  Abrahams  v.  Kidney,  104  Mass.  222  ;  Boyle  v.  Brandon,  13  M.  & 
W.  738. 

2  Boyle  V.  Brandon,  supra  ;  AlDrahams  v.  Kidney,  supra.  See  ante, 
p.  88. 

2  Damon  v.  Moore,  5  Lans.  454. 

*  Hogan  V,  Cregan,  6  Rob.  138  (N.  Y.),  criticised  in  Damon  v. 
Moore,  supra.  Comp.  Winter  v.  Henn,  4  Car.  &  P.  494  and  Forster  v. 
Forster,  33  L.  J.  Prob.  &  M.  liiO  n.,  as  to  criminal  conversation  ;  post, 
p.  175. 


168  LAW  OF  TORTS.  [Part  II. 

During  his  guardianship  of  the  daughter,  the  right  of  ac- 
tion belongs  to  him  aloue.  Should  he  be  removed  by  the 
law  from  his  natural  position  of  authority,  or  should  he 
die  during  the  child's  minority,  the  question  arises  of  the 
mother's  right  of  action  against  the  seducer.  It  is  clear 
if  the  guardianship  of  the  cliild  has  been  given  to  her,  she 
has  a  right  of  action  for  the  loss  of  service  ;  tliough  it  may 
be  doubted  if  at  the  present  time  the  mere  relation  of 
guardian,  apart  from  that  of  parent,  would,  in  all  cases, 
afford  a  right  of  action  for  tlie  child's  seduction,  a  point 
to  be  further  adverted  to  in  the  next  section. 

A  difficulty  arises  where  the  mother,  upon  the  death  of 
the  father,  or  his  removal  from  the  guardianship,  simply 
continues  to  exercise  authority  over  her  daughter,  and  to 
receive  her  (voluntary)  obedience,  without  having  re- 
ceived an  appointment  as  guardian.  The  mother's  right 
of  action  has  sometimes  been  supposed  to  turn  upon  the 
question  of  her  right  to  require  the  child's  support  in  such 
a  case,  —  a  doubtful  point  of  law.  It  is  now  well  settled 
in  America,  however,  that  so  long  as  the  daughter  contin- 
ues to  give  obedience  and  service  to  her  mother,  the  latter 
has  a  riglit  of  action  for  a  wrongful  interruption  of  the 
daughter's  position  of  servant.  For  example  :  The  de- 
fendant seduces  the  minor  daughter  of  the  plaintiff,  a 
widow.  The  daugliter,  having  previously  been  in  the  ser- 
vice of  the  defendant,  and  then  in  the  service  of  D, 
returns  from  the  latter  person  to  her  mother  to  aid  her 
during  siclvuess  in  the  family.  While  thus  with  her 
mother  for  a  day  or  two,  she  is  got  with  child  by  the  de- 
fendant. The  defendant  has  violated  a  legal  duty  to  the 
plaintiff,  and  is  liable  in  damages.^ 

The  authority  from  which  this  example  has  been  given 
went  one  step  further,  and  decided  that  the  mother's  right 

1  Gray  v.  Durlaud,  51  N.  Y.  424.  In  Abrahams  v.  Kidney,  104 
Mass.  222,  the  mother  sued  and  recovered. 


Chap.  VIII.  §  2.]       ENTICEMENT   AND   SEDUCTION.        169 

of  action  was  not  affected  By  the  fact  that  the  daughter, 
when  seduced,  was  actually  in  the  service  of  another,  so 
long  as  she  indicated  a  willingness  to  consider  her  mother 
as  still  entitled  to  her  assistance. 

There  is  also  conflict  of  American  authority  concerning 
the  mother's  right  of  action  in  such  cases  where  the 
daughter,  seduced  while  out  at  service,  returns  to  her 
mother,  and  is  supported  and  eared  for  during  her  sick- 
ness. The  doubt  is  in  regard  to  the  mother's  relation  to 
her  daughter  apart  from  any  interference  of  the  law  in 
giving  custody  to  her.  Unless  the  mother  is  considered 
to  have  the  legal  right  to  I'equire  her  daughter's  service,  it 
is  difficult  to  see  how  she  could  be  entitled  to  sue  for  the 
seduction  in  a  case  of  that  kind.^ 

The  child  is  not  entitled,  apart  from  statute,  to  sue  for 
her  own  seduction,  since  she  has  consented  to  the  act ; 
though  if  the  seduction  was  effected  under  a  promise  of 
marriage,  which  is  afterwards  broken,  she  may  recover 
damages  for  the  seduction.  But  the  action  is  then  for  the 
breach  of  promise  of  marriage,  and  not  for  the  seduction. 
For  like  reason  the  parent  is  barred  if  he  consented  or 
virtually  consented  to  the  act.     For  example :  The  de- 

1  The  mother's  right  of  action  in  such  cases  is  denied  in  Soutli  v. 
Denniston,  2  Watts,  474  ;  Roberts  v.  Connelly,  14  Ala.  235.  To  the 
same  general  effect,  Freto  v.  Brown,  4  Mass.  675  ;  Worcester  v.  Mar- 
chant,  14  Pick.   510.     It  is  supported  in  Sargent  v.  ,  5  Cowen, 

106.  It  is  obvious  that  the  rules  of  law  as  to  cases  like  those  stated 
must  remain  in  uncertainty  and  conflict  until  the  nature  of  the  mother's 
authority  is  definitely  settled.  It  is  still  more  doubtful  whether  the 
mother  of  a  daughter  not  born  in  lawful  wedlock  could  maintain  an 
action  in  a  case  like  that  of  the  text.  The  mother  would  not  be  even 
guardian  for  nurture  in  such  a  case.  See  Regina  v.  Clarke,  7  El-  &  B. 
186;  In  re  UUee,  53  L.  T.  N.  s.  711,  affirmed  54  L.  T.  N.  s.  286,  Ch. 
Div.  But  statutes  concerning  the  mother's  rights  are  coming  into 
existence  in  vai'ipus  States. 


170  LAW  OF  TORTS.  [Part  II. 

fendant  is  permitted  by  tlie  plaintiff  to  visit  bis  daughter 
as  a  suitor,  after  notice  that  he  is  a  married  man.  and  a 
libertine ;  the  defendant,  on  inquiry  by  the  plaintiff  as  to 
this  matter,  representing  that  his  wife  is  an  abandoned 
character, 'and  that  he  will  soon  obtain  a  divorce  from 
her,  and  then  marry  the  plaintiff's  daughter.  The  de- 
fendant afterwards,  while  continuing  his  visits  at  the 
plaintiff's  house,  seduces  the  young  woman.  The  plain- 
tiff is  deemed  not  entitled  to  recover  for  the  seduction.^ 


§  3.     Of  Guardian  and  "Ward. 

Not  only  the  parent,  but  any  one  standing  in  loco  par- 
entis, and  receiving,  to  his  own  benefit,  the  services  of  a 
child,  is  entitled  to  maintain  an  action  for  loss  of  services 
against  any  one  who  wrongfully  interrupts  the  rendering 
of  them,  or  makes  the  full  rendex'ing  of  them  impossible. 
For  example  :  The  defendant  seduces  the  plaintiff's  niece, 
the  parents  of  the  young  woman  being  dead,  and  the 
plaintiff  standing  towards  her  in  loco  parentis.  The  de- 
fendant is  liable,  though  the  young  woman  has  property 
left  her  by  her  parents,  and  performs  but  slight  services.* 

The  right  of  action  in  all  such  cases,  and  in  cases 
strictly  of  guardian  and  ward,  depends  (probably)  upon 
the  fact  that  the  guardian  or  person  standing  in  loco 
parentis  is  receiving  the  services  (however  slight)  to  his 
own  benefit.  If  the  guardian  has  merely  the  supervision 
of  the  ward  and  her  income,  while  she  lives  elsewhere,  or 
performs  service  for  herself,  the  guardian  simply  receiving 

^  Reddie  v.  Scoolt,  Peake,  240.  Comp.  cases  of  criminal  conversa- 
tion, p.  175. 

2  Manvell  v.  Thomson,  2  Car.  &  P.  303.  And,  as  in  the  case  of 
an  action  by  the  father,  damages  may  be  given  beyond  the  value  of 
the  services.     Irwin  v.  Dearman,  11  East,  23. 


Chap.  VIII.  §  4.]      ENTICEMENT  AND   SEDUCTION.         171 

her  wages  and  acting  as  hei-  trustee,  it  is  improbable  that 
he  can  sue  for  her  seduction.^ 

On  the  whole,  the  chief  difference  between  the  ordinary 
case  of  master  and  servant  on  the  one  hand,  and  that  of 
parent  and  clvild  and  guardian  and  ward  on  the  other, 
appears  to  be  that  in  the  former  case  the  services  must 
be  substantial,  and  the  damages  would  (probably)  be 
confiued  to  actual  loss  suffered;  whilst  in  the  other  two 
cases  the  services  may*be  nominal,  such  as  might  be  pre 
sumed  where  persons  so  related  live  together.^ 

§  4.     Of  Husband  and  Wife. 

To  entice  away  one's  wife  is  a  civil  wrong  for  which  the 
offender  is  liable  to  the  injured  husband.^  The  gist  of  the 
action,  however,  is  not,  it  seems,  the  loss  of  assistance, 
but  the  loss  of  the  consortium  of  the  wife,*  which  term 
implies  an  exclusive  right,  against  an  invader,  to  her 
affection,  companionship,  and  aid.^  It  is,  indeed,  held  to 
be  unnecessary  that  there  should  be  any  separation  or 

1  In  early  times  the  ward  was  the  guardian's  chattel.  Lumley  v. 
Gye,  2  El.  &  B.  216,  250,  257. 

2  For  this  paragraph  the  author  is  indebted  to  his  learned  friend, 
Mr.  R.  T.  Wright,  of  the  University  of  Cambridge,  England.  The  dif- 
ference in  regard  to  malice  should  not  be  overlooked.    See  ante,  p.  163. 

3  Under  changes  directly  or  indirectly  effected  by  recent  statutes, 
the  wife,  in  the  converse  case,  probably  has  a  corresponding  right  of 
action.  Westlake  v.  Westlake,  34  Ohio  St.  621  ,  Bennett  v.  Bennett, 
116  N.  Y.  584  ;  Jaynes  v.  Jaynes,  39  Hun,  40  ;  Warner  v.  Miller,  17 
Abb.  N.  C.  221  ;  Breiman  v.  Paasch,  17  Abb.  N.  C.  249;  Baker  u. 
Bakef,  16  Abb.  N.  C.  293  ;  Mehrhoff  v.  Mehrhoff,  26  Fed.  Eep.  13  ; 
Foot  V.  Card,  57  Conn.  247  ;  Seaver  v.  Adams,  19  Atl.  Rep.  776.  See, 
however.  Lynch  v.  Knight,  9  H.  L.  Cas.  577  ;  Van  Arnam  v.  Ayres, 
67  Barb.  544.     Further,  see  Cooley,  Torts,  267,  2d  ed. 

*  The  old  form  of  allegation  in  a  case  of  master  and  servant  was, 
'  per  quod  servitium  amisit '  ;  in  a  case  of  husband  and  wife,  '  per  quod 
consortium  amisit.' 

6  See  3  Black.  Com.  139,  140  ;  Bigaouette  v.  Paulet,  134  Mass.  123. 


172  LAW  OF    TORTS.  [Part  IL 

pecuniary  injury  ;  in  which  respect  the  action  resembles 
that  of  a  parent  for  the  seduction  of  his  daughter.  For 
example  :  The  defendant,  by  false  insinuations  against 
the  plaintiff,  and  other  insidious  wiles,  so  prejudices  and 
poisons  the  mind  of  the  plaintiff's  wife  against  him,  and 
so  alienates  her  affections  from  him,  as  to  induce  her  to 
desire  and  seek  to  obtain,  without  just  cause,  a  divorce  ; 
and  by  his  false  insinuations  and  wiles  succeeds  in  per- 
suading the  wife  to  refuse  to  recognize  the  plaintiff  as  her 
husband.  The  defendant  is  liable ;  though  no  actual 
absence  of  the  wife  is  caused.^ 

This  example,  it  will  be  observed,  does  not  go  to  the 
extent  of  declaring  a  person  liable  for  enticing  away  or 
corrupting  the  affections  of  the  wife  by  reason  of  charges 
against  the  husband  which  are  true;  but  there  can  be 
little  doubt  that  such  an  act  would  be  a  breach  of  duty 
to  the  husband.-^  The  constancy  and  affection  of  a  wife 
are  all  the  more  valuable  to  him  if  his  conduct  is  bad, 
since  they  may  save  him  from  ruin. 

A  difference  is  deemed  to  exist,  however,  between  the 
act  of  a  parent  and  that  of  other  persons  with  regard  to 
persuading  a  wife  to  leave  her  husband.  In  the  case  of 
one  not  a  parent,  it  is  not  necessary  that  bad  motives 
should  have  inspired  the  act.^'  Such  a  person  has  no  right 
to  entice  or  persuade  a  wife  to  leave  her  husband.  It 
does  not  follow,  however,  that  mere  advice  to  a  married 
woman  by  a  stranger  to  leave  her  husband,  upon  repre- 
sentations by  the  wife,  would  be  unlawful ;  advice  in  such 
a  case  is  one  thing,  enticement  is  another. 

In  regard  to  a  parent,  however,  it  is  considered  that  it 

1  Heermance  v.  James,  47  Barb.  120. 

2  See  Bromley  v.  Wallace,  4  Esp.  237.     The  conduct  of  the  husband 
could  be  shown  only  in  mitigation  of  damages.     Id. 

3  See  Hutcheson  v.  Peck,  5  Johns.  196  ;  Bennett  v.  Smith,  21  Barb. 
439. 


CiiAP.  Vm.  §  4  ]       ENTICEMENT   AND  SEDUCTION.        173 

is  no  breach  of  duty  to  the  husband  for  such  a  person, 
upon  information  that  his  daughter  is  treated  with  cruelty 
by  her  husband  or  is  subjected  to  other  gross  indignities 
such  as  would  justify  a  separation,  to  go  so  far  as  to  per- 
suade her  to  depart  from  her  husband ;  though  it  subse- 
quently appear  that  the  parent's  persuasion  was  based  on 
wrong  information.^  It  is  held  that  bad  motives  must 
have  actuated  the  parent  in  order  to  make  him  liable.^ 
This  seems  to  mean  that  the  parent  must  either  have 
enticed  his  daughter  to  leave  or  ta  stay  away  out  of  ill- 
will  towards  her  husband,  and  not  by  reason  of  any  good 
ground  for  their  separation  ;  or  that  he  must  have  some 
end  to  gain  of  personal  benefit  to  himself.  In  the  absence 
of  facts  of  this  character,  the  parent  is  deemed  not  liable 
for  persuading  his  daughter  to  absent  herself  from  her 
husband  on  information  justifying  (if  true)  a  divorce  or 
even  a  departure  of  her  own  motion ;  though  a  stranger 
in  blood  would  be  liable. 

Any  person  who  receives  a  married  woman  into  his 
house,  or  suffers  her  to  stay  there,  after  receiving  notice 
from  the  husband  not  to  harbor  her,  is  deemed,  presump- 
tively, to  violate  a  duty  which  he  owes  to  the  husband.* 
But  any  one  may,  notwithstanding  such  notice,  shelter 
the  wife  out  of  humanity,  on  her  representations  of  cruel 
treatment  by  her  husband.  For  example  :  The  defendant 
receives  the  plaintiff's  wife  into  his  house,  upon  represen- 
tations of  ill-treatment  by  her  husband  ;  and  he  continues 
to  permit  her  to  remain  there  after  notice  from  the  plain- 
tiff not  to  do  so.  The  defendant  is  not  guilty  of  a  breach 
of  duty  to  the  plaintiff.* 

1  Bennett  v.  Smith,  21  Barb.  439,  443. 

2  Hutcheson  v.  Peck,  supra. 

3  Winsmore  v.  Greenbank,  Willes,  577  ;  s.  c.  L.  C.  Torts,  328.  See 
Addison,  Torts,  905,  4tli  ed. 

*  Pliilp  V.  Squire,  Peake,  82. 


174  LAW   OF  TORTS.  [Part  II. 

Liability  for  harboring  must  (probably)  be  limited  to 
cases  in  which  the  defendant  has  clear  notice  that  the 
wife's  act  in  coming  to  him,  or  in  staying  with  him,  is 
intended  as  a  separation  by  her  from  her  husband,  and  a 
repudiation  of  his  claims  as  such.  A  man  cannot  at  the 
present  day  be  liable  in  damages  for  allowing  a  married 
woman  to  remain  in  his  house  a  few  days  after  notice  not 
to  do  so,  if  she  deny  that  she  has  abandoned  her  husband 
and  claim  that  she  is  merely  visiting,  or  that  she  is  away 
from  home  for  some  other  temporary  and  reasonable 
purpose.  The  defendant's  liability,  when  it  exists,  rests 
upon  the  ground  that  he  is  a  party  to  the  unlawful  pur- 
pose of  depriving  the  plaintiff  of  the  benefit  of  some 
advantage  embraced  under  the  designation  of  the  con- 
sortium of  his  wife.-^  If  the  wife  were  disposed  to  stay 
an  unreasonable  length  of  time  after  notice  from  the  hus- 
band, that  fact  would  perhaps  be  sufficient  to  cause  him 
to  suspect  her  true  purpose,  and  to  render  him  liable  in 
case  he  continued  to  permit  her  to  remain. 

It  is  settled  law  that  the  mere  fact  of  receiving 
another's  wife  is  not  unlawful,  even  though  no  ex- 
planation whatever  be  offered.^  There  must  be  an 
enticing  or  harboring  with  reference  to  a  wrongful 
separation.  It  is  not  enough  even  that  the  defendant 
take  the  plaintiff's  wife  to  the  defendant's  house,  upon 
request  by  her,  unless  he  has  notice  that  she  is  aban- 
doning her  husband  ;  though  he  has  been  required  by  the 
plaintiff  not  to  harbor  her.  For  example  :  The  defendant 
and  the  plaintiff  are  farmers  and  neighbors,  residing 
about  two  miles  apart.  Their  wives  are  relatives,  and 
the  plaintiff's  wife  often  visits  the  defendant's ;  the  de- 

1  Winsmore  v.  Greenbank,  "Willes,  577  ;  Hutcheson  v.  Peck,  5 
Johns.  196  ;  Sohuneman  v.  Palmer,  4  Barb.  225. 

2  Barnes  v.  Allen,  1  Keyes,  390  ;  Schuneman  v  Palmer,  supra. 
See  also  Winsmcre  v.  Greenbank.  supra. 


CiiAP.  VUI.  §  4.]      ENTICEMENT  AND  SEDUCTION.         175 

fendant  taking  her  to  his  house  in  his  wagon.  The  plain- 
tiff's wife  on  one  occasion  being  so  at  the  defendant's 
house,  the  plaintiff  gives  the  defendant  written  notice 
not  to  harbor  her,  but  to  return  her  to  his  residence 
from  which  he  (the  defendant)  has  taken  her.  The  de- 
fendant having  stopped  with  the  wife  near  her  husband's 
house,  she  goes  to  enter  it,  but  finds  the  door  locked,  and 
returns  to  the  defendant,  requesting  him  to  take  her  to 
his  house.  The  defendant  shows  her  the  notice,  and 
advises  her  not  to  go,  but  she  makes  light  of  the  matter, 
and  is  taken  to  the  defendant's  house.  The  next  day  the 
defendant  carries  her  home  ;  and  the  plaintiff  brings  suit 
for  the  harboring.  The  action  is  not  maintainable ;  the 
defendant  not  having  attempted  to  influence  the  wife  to 
leave  her  husband.^ 

So  much  for  enticing  away  a  man's  wife.  The  common 
law  gives  a  right  of  action  also  for  '  criminal  conversa- 
tion '  with  one's  wife  ;  ^  and  upon  the  same  ground  as  that 
for  enticing  the  wife  away  from  her  husband,  to  wit,  the 
loss  of  consortium. 3  It  arises  accordingly  without  regard 
to  the  infliction  of  pecuniary  damage.* 

It  follows  that  upon  separation,  by  articles  of  agree- 
ment, the  husband,  having  voluntarily  parted  with  his 
wife's  consortium,  cannot  maintain  an  action  for  criminal 
conversation  with  his  wife.^  But  if  the  separation  was 
without  any  relinquishment  by  the  husband  of  his  riglit  to 
the  society  of  his  wife,  the  action  is  maintainable.  For 
example :  The  defendant,  having  entered  into  a  contract 

1  Schuneraan  v.  Palmer,  4  Barb.  225. 

2  Weedon  v.  Timbrell,  5  T.  R.  357  ;  Harvey  v.  Watson,  7  Man.  & 
G.  644  ;  Bigaouette  v.  Paulet,  134  Mass.  123. 

8  Weedon  v.  Timbrell,  5  T.  R.  357. 
*  Wilton  V.  Webster,  7  Car.  &  P.  198. 
6  Harvey  v.  Watson,  7  Man.  &  G.  644. 


176  LAW  OF  TORTS.  [Part  IT. 

for  the  support  of  the  plaintiff's  wife  at  his  (the  defend- 
ant's) house,  the  wife  goes  there  under  the  agreement, 
and  the  defendant  seduces  her.  The  act  is  a  breach  of 
duty  to  the  plaintiff,  for  which  the  defendant  is  liable.^ 

The  mere  fact  of  the  husband's  infidelity  to  his  wife 
does  not  change  the  nature  of  the  defendant's  act  in 
seducing  and  debauching  her  ;  though  it  may  possibly,  in 
contemplation  of  law,  affect  its  enormity.  For  example : 
The  defendant  seduces  and  has  criminal  intercourse  with 
the  plaintiff's  wife.  Proof  is  offered  by  the  defendant 
that  the  plaintiff  had  shown  the  greatest  indifference  and 
want  of  affection  towards  his  wife ;  that  while  she  lay 
dangerously  ill  at  Y,  the  plaintiff  (a  surgeon  in  the  navy), 
though  his  vessel  was  at  Y,  and  he  landed  almost  daily, 
was  often  at  the  door  of  the  house  where  his  wife  lay 
sick,  without  visiting  her,  or  showing  any  anxiety  or 
concern  for  her ;  and  at  the  same  time  that  he  had  been 
guilty  of  adultery  and  had  contracted  a  venereal  disease^ 
This  is  no  defence  to  the  action ;  -  though  it  might  be 
considered  in  mitigation  of  damages.^ 

If,  however,  the  husband  was  accessory  to  his  own  dis- 
honor, the  case  is  different ;  he  could  not  complain  of  an 
injury  to  which  he  had  consented.*  For  example :  The 
plaintiff  allows  his  wife  to  live  as  a  prostitute,  and  the 
defendant  then  has  intercourse  with  her.  This  is  no 
breach  of  duty  to  the  plaintiff.^ 

1  See  Chambers  v.  Caulfield,  6  East,  244.  "VVeedon  v.  Timbrell  has 
been  limited  to  this  extent.  See  farther  Barbee  v.  Armstead,  10  Ired. 
530. 

'^  Bromley  v.  Wallace,  4  Esp.  237,  overruling  Wyndham  v.  Wy- 
combe, Id.  16. 

8  Id.  ;  Rea  v.  Tucker,  51  111.  110. 

*  '  Volenti  nou  fit  injuria.' 

5  See  Gibber  v.  Sloper,  cited  4  T.  R.  655  ;  Hodges  v.  Windham, 
Peake,  39  :  Sanborn  v.  Neilson,  4  N.  H.  501. 


Chap.  VHI.  §  6.]      ENTICEMENT  AND  SEDUCTION.        177 

Mere  negligence  as  to  the  wife's  behavior,  inattention, 
or  dulness  of  apprehension,  or  even  permission  of  inde- 
cent familiarity  in  the  husband's  presence,  are,  however, 
deemed  insufiicient  to  bar  a  recovery  for  criminal  conver- 
sation with  the  wife  ;  though  such  facts  might  be  proved 
in  reduction  of  damages.  Unless  the  conduct  of  the  hus- 
band amount  to  consent  to  the  defendant's  act  of  inter- 
course, the  defendant  is  liable.^ 

It  follows  from  what  has  been  said  that  condonation  of 
the  wife's  offence  does  not  excuse  the  man  who  debauched 
her ;  the  sole  consequence  of  the  condonation  is  to  pre- 
clude the  husband  from  obtaining  a  divorce.  For  exam- 
ple :  The  defendant  has  criminal  intercourse  with  the 
plaintiff's  wife,  and,  when  fatally  sick,  she  discloses  the 
fact  to  her  husband.  The  plaintiff  continues  to  care  for 
her  kindly  until  her  death.     The  defendant  is  liable.^ 

1  2  Greenleaf,  Evideace,  §§  51,  56;  L.  C.  Torts,  338.  But  comp. 
ante,  p.  174. 

2  Wilton  V.  Webster,  7  Car.  &  P.  198. 


12 


CHAPTER   IX. 
TRESPASSES  UPON  PROPERTY. 

§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  tluty  (1)  to 
forbear  to  enter  B's  close  without  permission  ;  (2)  to  for- 
bear to  take  or  interfere  with  possession  of  B's  chattels, 
without  permission  ;  unless,  in  either  case,  A  has  a  better 
right  than  B  to  the  possession  of  the  property. 

1.  The  term  '  close '  signifies  a  tract  of  land,  whether 
physically  enclosed  or  not. 

2.  '  Breaking  and  entering  the  close '  is  an  ancient  term 
of  the  law,  now  nearly  gone  out  of  use,  indicating  an  un- 
lawful entry  upon  land.  The  term  '  entry '  or  '  unlawful 
entry '  will  be  used  in  the  present  chapter  as  synonymous 
with  '  breaking  and  entering.' 

3.  A  trespass  to  land  is  an  unlawful  entry  upon  land.; 
a  trespass  to  goods  is  an  unlawful  taking  or  interfering 
with  the  possession  of  goods.  All  other  wrongful  acts 
connected  with  the  trespass  are  aggravation  of  the 
trespass. 

§  2.     Of  Possession. 

In  order  to  maintain  an  action  solely  for  damages  for  a 
trespass  to  land,  and  not  merely  for  the  recovery  of  the 
land,  it  is  necessary,  apart  from  statute,  for  the  plaintiff  to 


Chap.  IX.  §2.]    TKESPASSES   UPON  PROPERTY.  179 

have  had  possession  of  the  premises  entered  at  the  time 
of  the  entry.  A  person  who  enters  the  land  of  another 
without  the  latter's  permission,  the  latter  having  before 
been  unlawfully  deprived  of  possession  or  the  land 
having  never  been  in  his  possession,  may,  indeed,  violate 
a  duty  to  the  person  entitled  to  the  possession  ;  but  the 
common  law  requires  the  latter  to  get  possession  of  the 
land  before  giving  him  damages  for  the  wrong  committed. 
By  statute,  the  owner  may  sue  for  possession  and  dama- 
ages  in  one  action.-^ 

If,  however,  the  party  had  possession  at  the  time  of  the 
entr}^,  and  the  trespasser  ejected  him,  it  would  not  be  ne- 
cessary for  him  to  recover  possession  before  he  could  sue 
for  damages  for  the  wrongful  entry  and  expulsion  ;  he 
had  possession  at  the  time  of  the  trespass  and  disseisin, 
and  that  is  sufficient  for  the  purposes  of  such  an  action.'^ 
He  could  not,  however,  recover  damages  for  the  loss  sus- 
tained by  reason  of  the  disseisor's  occupancy,  until  after  a 
re-entry,^  or  suit  for  recovery  of  possession,  —  a  point  to 
be  further  considered  hereafter. 

On  the  other  hand,  possession  at  the  time  of  the  entry, 
if  held  under  a  claim  of  right,  is  prima  facie  sufficient  in 
all  cases  to  enable  a  person  to  maintain  an  action  for  an 
entr}^  upon  the  land  without  his  permission  ;  and  posses- 
sion alone  is  not  only  prima  facie  but  absolutely  sufficient 
against  all  persons  who  have  not  a  better  right  than  the 
possessor.*  It  follows  that  one  who  is  in  possession  of 
land  under  a  claim  of  title,  though  without  right,  may  re- 

1  In  some  States,  if  the  owner  sue  for  possession,  he  must  claim  his 
damages  in  the  same  action,  or  he  will  be  barred  of  the  right  to  recover 
them.  Raymond  v.  Andrews,  6  Gush.  265.  See  Leland  v.  Tousey,  6 
Hill,  328.  If  possession,  however,  is  obtained  without  suit,  an  action 
for  damages  is  maintainable,     Leland  v.  Tousey,  supra. 

2  Case  V.  Shepherd,  2  Johns.  Cas.  27.  8  i(j, 
*  Cotenancy  makes  an  exception.     See  post,  p.  186. 


180  LAW  OF  TORTS.  [Part  IL 

cover  for  an  entry  by  a  wrongdoer ;  that  is,  by  one  who 
enters  without  a  right  to  do  so.  For  example  :  The  de- 
fendant enters  without  permission  upon  land  in  the  pos- 
session of  the  plaintiff,  whose  possession  is  under  a  void 
lease.     The  defendant  is  liable.^ 

But  as  above  implied,  the  defendant  is  not  necessarily 
guilty  of  breach  of  duty  to  such  a  possessor  by  reason  of 
the  fact  that  he  (defendant)  does  not  own  the  land.  He 
may  still  have  a  legal  or  an  equitable  interest  in  the  prem- 
ises ;  he  may  be  a  lessee  of  the  land,  or  he  may  be  a 
trustee  of  the  same  or  the  latter's  cestui  que  trust.  In 
any  of  these  cases,  he  would  be  entitled  to  enter  upon  the 
premises,  if  he  could  do  so  without  breaking  the  peace. 
Indeed,  a  licensee  may  have  a  right  to  make  a  peaceable 
entry,  though  he  has  no  interest  whatever  iu  the  soil,  and 
could  have  no  right  of  entry  against  a  person  entitled  to 
the  possession.  For  example :  The  defendant  enters 
without  permission  premises  of  which  the  plaintiff  is 
wrongfully  in  possession;  the  act  being  done  by  direc- 
tion of  the  owner  of  the  land,  who  is  entitled  to  posses- 
sion. The  defendant  violates  no  duty  to  the  plaintiff ;  ^ 
though  the  case  would  have  been  different  had  he  entered 
without  authority  of  the  owner. ^ 

If  there  be  two  persons  in  a  close,  each  asserting  that 
the  premises  are  his,  and  each  doing  some  act  in  the  as- 
sertion of  the  right  of  possession,  he  who  has  the  better 
title  or  right  is  considered  as  being  in  possession  ;  and  the 
other  is  a  trespasser.*     The  former  is  therefore  in  a  posi- 

1  Graham  v.  Peat,  1  East,  244.  'Any  possession  is  a  legal  posses- 
sion against  a  wrongdoer.'  Lord  Kenyon.  See  Cutts  v.  Spring,  15 
Mass.  135  ;  s.  c.  L.  C.  Torts,  341. 

'■*  Chambers  v.  Donaldson,  11  East,  65. 

8  The  subject  of  rights  of  entry  in  general  will  be  considered  here- 
after, §  3.  It  is  introduced  here  merely  to  show  the  consequences  of 
possession. 

*  See  Reading  v.  Royston,  2  Salk.  423. 


Chap.  IX.  §  2.]    TRESPASSES  UPON  PROPERTY.  181 

tion  to  demand  damages  of  the  latter  for  his  wrongful 
entry.  For  example  :  The  defendant  is  in  possession  of 
land  without  right,  and  so  continues  after  'the  plaintiff, 
who  is  the  owner,  enters  to  take  possession,  ploughing  the 
land.  The  defendant  is  guilty  of  trespass  to  the  plaintiff.^ 
Again :  The  defendant  is  in  occupancy  of  land  jointly 
with  the  plaintiff,  claiming  to  be  a  tenant  in  common  of 
the  premises  with  the  plaintiff.  His  claim,  however,  is 
unfounded,  and  the  plaintiff  is  owner  of  the  close.  The 
defendant  may  be  treated  by  the  plaintiff  as  a  trespasser.^ 
If  neither  of  the  parties  in  occupancy  has  a  right  to  the 
close,  the  question  whether  either  of  them  has  violated  a 
duty  to  the  other,  supposing  each  to  claim  possession,  will 
turn  upon  the  '  exclusive  pi-iority  of  possession.'  The 
one  who  first  entered,  if  he  took  exclusive  possession,  will 
be  entitled  to  damages  against  the  other ;  if  he  did  not  so 
take,  neither  can  recover  against  the  other.  For  exam- 
ple :  The  defendants  claim  a  right  to  take  cranberries 
in  an  unoccupied  field  under  a  license  from  one  H.  The 
plaintiffs  have  previously  entered  into  possession  of  the 
land,  and  forbidden  all  persons  by  public  notice  to  take 
cranberries  therefrom,  except  on  certain  conditions  with 
which  the  defendants  do  not  comply.  H,  under  whom 
the  defendants  claim,  had  entered  before  the  entry  of  the 
plaintiffs ;  but  neither  H,  nor  the  defendants,  nor  the 
plaintiffs  have  any  right  to  the  soil  or  the  berries  ;  and 
neither  ever  had  exclusive  possession.  The  defendants 
have  violated  no  duty  to  the  plaintiffs ;  ^  and  so  in  the 
converse  case.'* 

There  is  this  important  distinction  between  the  law  re- 
lating to  possession  of  real  property  and  that  relating  to 

1  Butcher  v.  Butcher,  7  B.  &  C.  399. 

^  Hunting  v.  Russell,  2  Cush.  145. 

3  Barnstable  v.  Thacher,  3  Met.  239.  «  Id. 


182  LAW  OF  TORTS.  [Part  II. 

possession  of  personalty :  to  enable  a  plaintiff  to  recover 
for  trespass  to  realty,  be  must  bave  bad  a  real  possession  ; 
wbile  a  plaintiff  may  recover  for  trespass  to  personalty  if 
he  bad  a  right  to  take  possession.  To  assimilate  tbe  two 
cases,  it  is  often  said  tbat  tbe  rigbt  to  take  possession  of 
personalty  draws  possession  in  law.  Wboever  tben  bas  a 
rigbt  to  tbe  possession  of  a  cbattel,  wbetber  it  be  towards 
all  tbe  world  or  only  towards  tbe  defendant,  is  in  a  posi- 
tion to  sue  for  an  interruption  of  bis  enjoyment  tbereof. 
For  example  :  Tbe  defendant,  without  permission,  takes 
goods  out  of  tbe  possession  of  A,  after  A  bas  sold  tbem 
to  tbe  plaintiff",  but  before  tbey  bave  been  delivered  to 
bim.     Tbis  is  a  breach  of  duty  to  the  plaintiff'.^ 

What  constitutes  real  possession,  however,  as  distin- 
guished from  a  right  to  take  possession,  is  one  of  tbe  diffi- 
cult questions  of  tbe  law,  especially  when  it  comes  to  tbe 
application  of  definition  to  particular  cases.  Contact  cer- 
tainly is  not  necessary ;  it  is  enough,  so  far  as  that  is 
concerned,  that  no  one  is  opposing  possession  and  tbat 
tbe  power  to  take  tbe  property  into  hand  exists.  That 
conception  of  the  term  which  on  tbe  whole  most  nearly 
harmonizes  with  tbe  authorities  on  specific  situations  ap- 
pears to  be  this :  ( 1 )  a  power  of  control  over  property, 
and  (2)  a  purpose  to  exercise  the  same  for  tbe  benefit,  at 
the  time,  of  the  holder,  or  facts  from  which  such  a  pur- 

1  Bacon's  Abr.  Trespass  C.  2  ;  L.  C.  Torts,  370.  QuiBre  whether 
possession  of  personalty  in  itself  will  support  an  action,  as  e.g.  the 
j)OSsession  of  a  thief  who  is  dispossessed  hy  another  thief?  It  is  urged 
tliat  mere  possession  is  enough.  Pollock  &  Wright,  Possession,  91,  93, 
147,  148.  It  may  on  the  other  hand  be  urged  that  only  that  sort  of 
possession  which  is  capable  of  ripening  into  a  title  should  be  protected, 
as  e.g.  tbe  possession  of  a  finder.  In  the  Roman  law  a  thief  could 
not  have  the  'actio  furti'.  Dig.  47,  2,  11  ;  Id.  47,  2,  12,  1;  Inst.  4, 
1,  13.  See  also  Buckley  v.  Gross,  3  Best  &  S.  566,  573,  Crompton,  J. 
As  to  the  criminal  law  of  such  cases  see  Commonwealth  v.  Rourke, 
10  Gush.  397,  399  ;  Pollock  &  Wright,  Possession,  118  et  setj. 


Chap  IX.  §  2.]     TRESPASSES   UPON  PROPERTY.  183 

pose  could  be  assumed  if  the  mind  were  directed  to  the 
object  of  possession.^  It  is  clear  that  without  these  two 
facts  there  is  no  true  possession  in  the  eye  of  the  law ; 
but  to  say  that  there  is  possession  in  all  cases  with  them 
would  be  to  say  that  the  authorities  are  in  harmony.  A 
mere  servant  may  have  '  detention '  or  custody,  but  as 
servant  can  have  no  possession,  according  to  current 
views,  because  a  servant  does  not  hold  in  his  own  right ;  "^ 
but  what  of  an  agent, ^  or  a  bailee  for  hire,  or  a  tenant  at 
will?  The  authorities  are  not  agreed.  It  is  said  that 
none  of  them  has  possession.  Thus,  some  say  of  tenants 
at  will,  that  both  tenant  and  landlord  cannot  be  in  posses- 
sion at  the  same  time,  and  the  landlord  certainly  is  pos- 
sessed in  contemplation  of  law.  Others  treat  both  as 
having  the  rigJits  of  possessors ;  and  this  appears  to  be 
the  more  just  view.^ 

Indeed,  a  reversioner  or  remainder-man  after  an  estate 
for  years  can  maintain  an  action  for  injuries  done  to  his 
interest,  notwithstanding  the  fact  that  the  land  is  in  the 
possession  of  the  termer.  Injuries  done  to  such  interests 
are  not,  however,  in  strictness  of  common-law  ideas,  tres- 
passes. The  trespass  consists  in  the  wrongful  entry  upon 
the  land,  and  this  is  a  tort  to  the  tenant,  and  not  to  the 
landlord  or  remainder-man  ;    since  it  is  an  interference 

1  Comp.  London  Banking  Co.  v.  London  Bank,  21  Q.  B.  Div.  535, 
542  ;  and  see  Regina  v.  Ashwell,  16  Q.  B.  D.  190. 

2  Year  Book,  13  Edw.  IV  9,  10,  pi.  5  ,  21  Hen.  VIL  14,  pL  21  ; 
Harris  v.  Smith,  3  Serg.  &  R.  20  ;  Hampton  v.  Brown,  13  Ired.  18. 
These  are  all  common-law  authorities  ;  but  the  point  is  not  free  from 
doubt.  See  Holmes,  Common  Law,  226-228  ;  Moore  v.  Robinson,  2  B. 
&  Ad.  817  ;  Mathews  v.  Hursell,  1  E.  D.  Smith,  393  ;  Regina  v.  Ash- 
well,  16  Q.  B.  D.  190 

3  See  Knight  v.  Legh,  4  Bing.  589,  Best,  C.  J.  holding  that  an 
agent  might  bring  trover,  as  having  possession. 

*  See  Starr  v.  Jackson,  11  Mass.  519,  where  the  cases  are  reviewed  ; 
and  see  Markby,  Elements  of  Law,  §  388,  3d  ed.  Tenant  at  will  clearly 
holds  for  himself  for  the  time. 


184  LAW  OF  TORTS  [Part  II. 

with  the  possession,  which  belongs  to  the  tenant.  For 
example  :  The  defendant  enters  upon  the  plaintiff's  land, 
let  for  years,  in  the  assertion  of  a  right  of  way,  driving 
thereon  his  horses  and  cart,  and  continuing  so  to  do 
after  notice  from  the  plaintiff  to  quit.  The  defendant  has 
violated  no  duty  to  the  plaintiff.^ 

Damage  done  to  the  inheritance  in  the  case  of  leasehold 
or  mortgaged  laud  is  waste  if  committed  by  the  tenant  or 
mortgagor,  and  a  tort  which  may  be  deemed  to  be  in  the 
nature  of  (but  not  strictly  as)  a  trespass,  if  committed  by 
a  stranger.  But  whatever  term  may  be  applied  to  the  act, 
it  is  a  breach  of  duty  to  the  landlord  or  mortgagee,  for 
which  he  is  entitled  to  recover  damages.  For  example  : 
The  defendant,  a  tenant,  or  a  mortgagor,  or  a  licensee,  or 
a  stranger,  cuts  down  trees  on  land  owned  by  the  plain- 
tiff, or  of  which  he  is  mortgagee  or  remainder-man,  with- 
out the  plaintiff's  consent.  This  is  a  breach  of  duty  to 
the  plaintiff,  and  the  defendant  is  liable  to  him  in  dama- 
ges ;  though  the  plaintiff  is  not  in  possession. ^ 

A  similar  rule  of  law  prevails  in  regard  to  injuries  done 
to  personal  property  held  on  lease  or  on  pledge,  or  by  a 
mortgagor  in  possession.  For  an  injury  done  to  the  pos- 
sessor's interest  merely,  that  is,  for  a  simple  unlawful 
taking  of  the  goods,  the  remedy  belongs  to  tlie  possessor 
alone  ;  but  for  an  injury  done  to  the  reversion,  or  to  the 
mortgagee  if  the  goods  be  mortgaged,  the  landlord  or  the 
mortgagee  is  entitled  to  treat  the  act  as  a  breach  of  duty 
to  him  and  call  for  redress.^     For  example  :  The  defendant 


1  Baxter  v.  Taylor,  4  B.  &  Ad.  72.     The  action  was  '  case  '. 

2  See  Yoinig  v.  Spencer,  10  B.  &  C.  145  ;  Page  v.  Robinson,  10 
Cush.  99  ;  Cole  v.  Stewart,  Id.  181.  None  of  these  are  cases  of  actions 
by  remainder-men,  but  they  cover  such  cases  in  principle.  The  form 
of  action  at  common  law  is  'case'  and  not  trespass. 

3  In  '  case ',  or  trover,  at  common  law.  See  Farrant  v.  Thompson, 
5  B.  &  Aid.  826,  where  trover  was  brought. 


Chap.  IX.  §  2.1     TRESPASSES   UPON  PROPERTY.  185 

levies  on  and  sells  goods  in  the  possession  of  S,  whose 
right  to  the  possession  rests  upon  an  agreement  by  the 
plaintiff  to  convey  the  same  to  him  upon  the  payment  of 
notes  given  therefor.  The  defendant  has  not  been  led  by 
the  plaintiff  to  suppose  that  the  goods  belong  to  S  ;  on  the 
contrary,  the  defendant  has  notice  at  the  time  of  the  levy 
of  the  plaintiff's  title.  The  defendant's  act  in  disposing 
of  the  goods  is  a  breach  of  duty  to  the  plaintiff,  and  he  is 
liable  in  damages  ;  though  the  right  of  possession  is  in  8.^ 
A  man's  close  includes  not  only  his  actually  enclosed 
land,  but  also  all  adjoining  unenclosed  lands  held  by  him  ; 
and,  if  he  is  in  possession  of  any  part  of  his  premises,  he 
is  in  possession  of  the  whole,  unless  other  parts  are  occu- 
pied by  tenants  for  term  of  years  or  by  persons  who  claim 
adversely  to  him.  The  owner  has  the  'power  of  control' 
and  the  '  purpose  to  exercise  the  same '  for  himself ;  he 
is  therefore  in  a  proper  position  to  recover  damages  for 
trespasses  committed  in  any  part  of  his  premises,  the 
unenclosed  as  well  as  the  enclosed.-  For  example  :  The 
defendant,  without  permission,  enters  and  cuts  timber  in 
an  open  woodland  of  the  plaintiff,  adjoining  a  farm  upon 
which  the  plaintiff  resides.  The  plaintiff  is  in  possession 
of  the  woodland,  and  is  entitled  to  recover.* 

1  Ayer  v.  Bartlett,  9  Pick.  156. 

2  Such  possession  is  often  called  'constructive',  but  that  term,  like 
the  term  'symbolical'  possession,  is  apt  to  darken  counsel.  Possession 
is  surely  real  when  one's  control  can  be  extended  over  the  property  at 
any  time.     See  Markby,  Elements  of  Law,  §§  353,  359,  360,  3rd  ed. 

8  Machin  u.  Geortner,  14  Wend.  239  ;  Penn  v.  Preston,  2  Rawle,  14; 
Jones  V.  AVilliams,  2  M.  &  W  326,  331  ,  Lord  Advocate  v.  Blantyre,  4 
App.  Gas.  770,  791  ;  Coverdale  v.  Charlton,  4  Q.  B.  Div.  104,  118. 
'  I  hold  that  there  is  no  usage  of  the  country,  nor  rule  of  the  common 
law,  nor  any  reason  requiring  a  man  to  enclose  his  timber  land,  and 
that  for  any  possible  purpose  that  can  be  named  the  woods  belonging  to 
a  farm  ai-e  as  well  protected  by  the  law  without  a  fence  as  with  one  ' 
Tod,  J.  in  Penn  i'.  Preston,  supra. 


186  LAW  OF  TORTS.  [Pakt  II 

The  foregoing  proposition  in  regard  to  possession  of 
adjoining  unenclosed  laud  supposes  that  the  party  injured 
has  a  right  to  the  possession  of  the  enclosed  premises 
actually  occupied  by  him.  One,  however,  who  is  in  pos- 
session of  land  without  title  or  right  can  have  no  such 
extended  possession ;  the  rights  of  a  bare  possessor  are 
limited  by  the  bounds  of  his  immediate  occupation  and 
control.  For  example  :  The  defendant,  having  wrongful 
possession  of  the  south  end  of  a  lot,  cuts  timber  upon  the 
north  end  thereof,  lying  without  the  limits  of  his  actual 
occupation ;  which  timber  has  been  purchased  and  duly 
marked  by  the  plaintiff.  The  land  on  which  the  timber 
stood  is  not  in  the  possession  of  the  defendant,  and  the 
plaintiff  is  entitled  to  damages  for  the  violation  of  his 
right  of  property ;  though  he  has  no  right  to  the  land.^ 
Again  :  The  defendant,  without  right  or  authority,  enters 
upon  an  open  woodland  adjoining  enclosed  land  in  the 
wrongful  possession  of  the  plaintiff.  The  act  is  no  breach 
of  duty  to  the  plaintiff." 

One  of  several  cotenants,  whether  of  real  or  of  personal 
property,  cannot  maintain  an  action  for  acts  relating  to 
the  common  property,  not  amounting  to  an  ouster ;  be- 
cause all  the  cotenants  have  equal  rights  of  possession 
and  property.  For  example  :  The  defendant,  cotenant  of 
land  with  the  plaintiff,  cuts  and  carries  away  therefrom 
timber,  at  the  same  time  denying  to  the  plaintiff  any  right 
in  the  premises,  but  not  withholding  possession  from  him. 
The  defendant  has  violated  no  duty  to  the  plaintiff.^ 

If,  in  the  case  of  real  estate,  the  act  of  the  defendant, 

1  Buck  V,  Aiken,  1  Wend.  460.  The  plaintiff  became  possessed  of 
the  trees  as  soon  as  they  were  cut  down  by  tlie  defendant. 

2  It  is  difficult  to  find  judicial  authority  for  this  example,  because, 
perhaps,  of  its  simplicity.     Its  correctness  is  clear. 

»  Filbert  v.  Hotf,  42  Penn.  St.  97  ;  Reading's  Case,  1  Salk.  392. 


Chap  IX.  §  2]  TRESPASSES  UPON  PROPERTY.      187 

however,  amount  to  au  ouster  of  the  plaintiff  from  the 
possession  of  the  common  property,  the  act  is  a  trespass, 
and  the  defendant  is  liable  ;  provided,  at  least,  an  action 
of  ejectment  would  at  common  law  be  maintainable.  For 
example  :  The  defendant,  being  cotenant  with  the  plaintiff 
of  a  certain  room  in  a  coffee-house,  expels  therefrom  the 
plaintift"s  servant,  in  derogation  of  the  plaintift"'s  right  of 
occupation.  The  defendant  is  liable  to  the  plaintiff  in 
damages  ;  since  an  action  of  ejectment  for  restoration  to 
possession  would  lie.^ 

Whatever  amounts  to,  or  if  persisted  in  might  amount 
to,  an  effectual  privation  of  the  associate  tenant  of  parti- 
cipation in  the  possession  of  the  common  property  amounts 
to  an  ouster,  even  though  there  be  no  actual  expulsion  or 
withholding  of  possession  from  him.  For  example  :  The 
defendant,  cotenant  with  the  plaintiff  of  a  certain  close, 
digs  up  the  turf  and  carries  it  away,  without  the  plaintiff's 
consent.  This  is  an  ouster,  for  which  the  defendant  is 
liable  to  the  plaintiff  in  damages ;  since,  if  the  cotenant 
were  permitted  to  take  the  turf,  he  would  be  entitled  to 
dig  away  the  soil  below  the  turf,  and  might  thus  effectually 
deprive  his  fellow  of  his  right  to  the  possession.^ 

If  the  criterion  of  this  remedy  between  cotenants  for 
an  ouster  be  the  question  whether  an  ejectment  would  be 
maintainable,  it  follows  that  an  action  for  trespass  in 
respect  of  goods  held  in  common  cannot  be  maintained  by 
one  cotenant  against  another ;  for  an  action  of  ejectment 

1  Murray  v.  Hall,  7  C.  B.  441 ,  s.  c.  L.  C.  Torts,  343.  Ejectment 
was  originally  an  action  of  trespass,  and  was  always  deemed  to  include 
trespass.     Hence,  if  that  form  of  remedy  may  be  used,  trespass  lies. 

'^  Wilkinson  v.  Haygarth,  12  Q.  B.  837.  The  defendant  would  not 
have  been  liable  to  an  action  for  trespass  for  taking  and  carrying  away 
the  growing  grass  or  crops.  Id.  Accounting  between  cotenants  was 
provided  for  by  4  Anne,  c.  16,  §  27,  where  one  cotenant  has  taken  more 
than  his  share  of  the  profits.  That  statute  has  been  re-enacted  in  effect 
in  this  country. 


188  LAW  OF  TORTS.  [Part  II. 

lies  for  the  recovery  of  land  only.  Nor,  indeed,  is  there 
any  authority  in  opposition  to  this  deduction  ;  the  ques- 
tion of  the  right  of  action  having,  so  far  as  the  reported 
authorities  go,  always  arisen  in  regard  to  common  rights  in 
realty.^  Some  decisions  in  this  country  have  denied  the 
remedy  even  when  resorted  to  in  cases  of  real  property.^ 

In  respect  of  personal  property,  however,  it  will  be  seen 
in  the  next  chapter  that  an  action  for  the  conversion  of  the 
common  chattel  can  be  maintained  in  certain  cases.  The 
difficulty  thus  relates  more  to  the  form  of  action  than  to 
the  substance  of  things.  It  may  therefore  be  laid  down, 
that  for  one  tenant  in  common  of  personal  property  to 
withhold  possession  of  the  chattel  from  his  associate,  or  to 
expel  him  from  participation  in  the  possession,  or  to  ap- 
propriate to  himself  more  than  his  share  of  the  profits 
arising  from  the  property,  is  a  breach  of  legal  duty  to  the 
latter,  for  which  the  law  gives  redress.^ 

It  has  been  observed  that,  in  order  to  maintain  an  ac- 
tion at  common  law  for  trespass  to  land,  possession  of  the 
land  at  the  time  of  the  wrongful  entry  is  necessary.  But 
the  common  law  does  not  allow  a  person  who  has  wrong- 
fully entered,  to  take  and  enjoy  the  profits  of  the  land,  or 
to  commit  depredations  upon  the  premises  during  his 
occupancy,  without  a  reckoning.  If  the  owner  or  person 
entitled  to  the  possession  subsequently  obtain  possession 
of  the  land,  the  law  treats  him,  by  the  fiction  of  relation, 

1  See  the  cases  cited  in  L.  C.  Torts,  pp.  358-360. 

2  Wait  V.  Richardson,  33  Vt.  190.  See  also  Bennet  v.  Bullock,  35 
Penn.  St.  364,  367. 

3  The  difficulty  in  the  way  of  an  action  for  trespass  is  that  the  de- 
fendant, tenant  in  common,  had  a  right  of  possession,  and  that  is  in- 
consistent with  that  action.  But  in  an  action  for  the  conversion  of  a 
chattel,  it  matters  not  that  the  defendant  had  a  right  of  possession. 
The  gist  of  such  an  action  is  not  (as  it  is  in  trespass)  the  wrongful 
taking  possession,  but  the  conversion  of  the  plaintiff 's  right. 


Chap.  IX  §  2.|     TRESPASSES   UPON  PROPERTY.  189 

as  having  been  in  possession  during  all  the  time  that  has 
elapsed  since  he  was  ejected  from  the  premises. 

The  consequence  is,  that  upon  his  re-entry  he  becomes 
entitled  to  sue  for  the  damage  which  he  has  sustained  at 
the  hands  of  the  party  who  has  usurped  the  possession. 
The  remedy  thus  allowed  is  called  an  action  for  mesne 
profits  ;  that  is,  for  the  value  of  the  premises  during  the 
period  in  which  the  plaintiff  has  been  kept  out  of  posses- 
sion by  the  defendant.  The  plaintiff  is  also  entitled  to 
recover  for  all  wrongful  entries  upon  and  damages  done  to 
his  property  in  the  mean  time.^  For  example  :  The  de- 
fendant enters  upon  premises  of  the  plaintiff,  of  which  the 
plaintiff'  has  been  disseised,  and  removes  buildings  there- 
from. The  plaintiff'  subsequently  re-enters,  and  then 
brings  suit  for  damages  done  to  his  property.  He  is  en- 
titled to  recover.^ 

There  is  conflict  of  authority  in  regard  to  the  existence 
in  the  disseisee  of  a  right  of  action  for  mesne  profits 
against  one  who,  before  the  plaintiff's  entry,  had  suc- 
ceeded the  disseisor  by  descent  or  purchase ;  that  is,  in 
the  language  of  the  law,  against  a  stranger.  On  the  one 
hand,  it  is  said  that  to  take  a  supposed  title  from  another 
cannot  be  a  trespass,  and  therefore  mesne  profits  arising 
during  the  latter's  occupation  cannot  be  recovered  of 
him.^     On  the  other  hand,  the  apparent  injustice  of  this 

1  Liford's  Case,  11  Coke,  46,  51.  As  to  cases  between  landlord  and 
tenant  see  (under  statute)  Smith  v.  Tett,  9  Ex.  307  ;  Doe  v.  Harlow, 
12  Ad.  &  E.  40  ;  Doe  v.  Challis,  17  Q.  B.  166  ;  Pearse  v.  Coker,  L.  R. 
4  Ex.  92.  Mesne  profits  may  now  be  had  in  a  suit  to  recover  the  land. 
See  ante,  p.  179. 

2  Dewey  v.  Csborn,  4  Cowen,  329.  This  case  shows  also  that  the 
party  on  re-entry  is  in  a  position  to  sue  for  every  entry  upon  his  lands 
made  without  authority. 

8  Liford's  Case,  11  Coke,  46,  51  ;  Bamett  v.  Guildford,  11  Ex.  19, 
30  ;  Case  v.  De  Goes,  3  Caines,  261,  263  ;  Van  Brunt  v.  Schenck,  10 
Johns.  377,  385  ;  Dewey  v.  Osborn,  4  Cowen,  329,  338. 


190  LAW   OF   TOETS.  [Part  II. 

doctrine  towards  the  owner  has  been  urged,  and  the  con- 
trary conchision  reached.^  Between  the  extremes  of  these 
rulings,  however,  there  is  an  nnportant  class  of  cases  in 
this  country,  in  regard  to  which  there  is  little  conflict. 
These  are  cases  in  which  the  defendant  claims  under  one 
who  has  been  let  into  possession  under  legal  process. 
In  cases  of  this  kind,  it  has  been  held  that  the  defendant 
is  not  liable  for  mesne  profits  ;  and  it  seems  just,  as  well 
as  conformable  to  the  doctrine  of  trespass  upon  lands, 
that  one  who  has  obtained  possession  under  the  disseisor 
by  process  of  law  should  be  presumed  to  be  rightfully 
possessed  while  the  process  (and  the  possession  by  virtue 
of  it)  continues  in  force.  For  example  :  The  defendant 
enters  and  occupies  land  of  the  plaintiff  under  a  writ  of 
possession,  executed  against  one  who  had  wrongfully 
disseised  the  plaintiff.  The  writ  is  afterwards  set  aside, 
and  the  plaintiff  resumes  possession.  The  defendant  is 
not  liable  for  the  profits  consumed  during  his  occupancy.^ 
Again  :  The  defendant  enters  and  takes  possession  of  the 
plaintiff's  land  under  a  license  from  one  who  has  been 
put  into  possession  against  a  wrongdoer  under  a  writ  of 
restitution,  which  writ  is  afterwards  quashed.  The  de- 
fendant is  not  liable  for  the  mesne  profits.^ 

It  would  seem  also  that  purchasers,  third  persons, 
under  judicial  sales,  should  stand  in  a  like  situation ; 
for,  though  they  do  not  acquire  title  from  parties  let  into 
possession  under  legal  process,  they  take  through  the 
sheriff,  who  may  reason abl}^  be  presumed  to  have  author- 
ity to  sell.     And  there  is  judicial  authority  for  this  view.^ 

1  Holcomb  V.  Eawlyns,  2  Cro.  Eliz.  540  (decided  before  Liford's 
Case)  ;  s.  c.  L.  C.  Torts,  363  ;  Morgan  v.  Varick,  8  Wend.  587. 

2  Bacon  v.  Sheppard,  6  Halst.  197,  following  Menvil's  Case,  13 
Coke,  19,  21. 

8  Case  V.  De  Goes,  3  Caines,  261,  following  Menvil's  Case,  supra. 
*  Dahney  v.  Manning,  3  Ohio,  321. 


Chap.  IX.  §  3.]     TRESPASSES   UrON  PROPERTY.  191 

It  would  (probably)  be  otherwise  if  the  purchaser  should 
be  the  person  who  had  instituted  the  invalid  proceedings 
under  which  he  was  let  iuto  possession.^ 

The  non-liability  of  the  purchaser  or  heir  extends,  how- 
ever, only  to  profits  consumed  by  him.  If  such  person 
sow  the  laud,  or  cut  down  trees,  or  grass,  or  crops,  and 
sever  and  carry  them  away,  or  sell  them  to  another,  the 
disseisee,  after  regress,  may  take  the  things  severed 
wherever  he  can  find  them,  or,  if  he  cannot  find  them, 
recover  their  value  of  the  person  lately  in  possession. 
The  regress  of  the  disseisee  has  I'elation  to  the  begin- 
ning of  the  last  occupation,  and  the  title  to  the  things 
severed  is  therefore  in  him,  which  title  the  carrying 
away  and  disposing  of  cannot  divest.^ 

§  3.     Of  what  constitutes  a  Trespass  to  Property. 

The  gist  of  an  action  for  trespass  to  land  consists  in 
the  wrongful  entry  upon  it,  and  so  in  interfering  with 
the  owner's  (or  tenant's)  right  of  entire  possession. 
Any  entry  upon  land  in  the  rightful  possession  of  another, 
without  license  or  permission,  is  a  breach  of  duty  to  the 
possessor ;  and  this  too  tliough  the  land  be  unenclosed. 
It  follows  that  an  action  is  maintainable  for  such  an 
entry,  though  it  be  attended  with  no  damage  to  the  pos- 
sessor. For  example  :  The  defendant  without  permission 
enters  upon  unenclosed  laud  in  the  lawful  possession  of 
the  plaintiff,  with  a  surveyor  and  chain  carriers,  and 
actually  surveys  part  of  it,  but  without  doing  any 
damage.  The  act  is  a  breach  of  duty  to  the  plaintiff, 
and  the  defendant  is  liable  at  least  to  nominal  damages.* 

1  See  further  L.  C.  Torts,  362-366. 

2  See  Liford  s  Case,  supra.  But  of  course  if  the  owner  take  away 
the  things  severed,  the  defendant  can  recoup  their  value  in  trespass  for 
the  mesne  profits.     Id. 

»  Dougherty  v.  Stepp,  1  Dev.  &  B.  371  ;  Hobson  v   Todd,  4  T.   R. 


192  LAW  OF  TORTS.  [Part  II. 

The  act  is  a  breach  of  duty  (though  not  in  strict 
technical  sense  a  trespass)  even  if  the  close  entered  be 
a  private  way,  if  only  the  plaintiff  has  a  right  of  pas- 
sage along  or  aci'oss  it ;  it  matters  not  that  the  plaintiff 
has  no  right  to  the  soiL^  For  example  :  The  defendant 
deposits  articles  at  various  times  in  a  passage-way  to 
the  use  of  which  he  has  no  right,  and  the  plaintiff  has  a 
right,  though  the  ownership  of  the  soil  is  in  another. 
The  defendant  is  liable ;  though  he  removes  the  articles 
in  every  instance  before  the  plaintiff  desires  to  pass  out, 
and  never  in  fact  hinders  the  plaintiff  in  entering  or  in 
going  out  of  the  passage.^ 

A  close  is  deemed  to  have  been  broken  and  entered 
even  though  the  act  was  not  in  fact  committed  within 
it,  but  only  against  its  bounds.  To  bring  anything 
against  such  bounds  without  permission  is  a  trespass. 
For  example  ;  The  defendant,  without  permission,  drives 
nails  into  the  outer  wall  of  the  plaintiff's  building, 
which  stands  upon  the  line  of  the  plaintiff's  premises. 
This  is  a  breach  of  duty,  for  which  the  defendant  is 
liable  in  damages.^  Again  :  The  defendant  heaps  up 
dirt  close  to  the  plaintiff's  boundary  wall,  and  the  dirt, 
of  itself,  falls  against  the  wall.     This  is  a  trespass.^ 

An  entry  upon  land,  or  a  taking  of  goods,  is  justifi- 
able when  effected  either  (1)  by  license  or  consent  of 
the  party,  or  (2)  by  license  of  the  law ;  a  license  being 
a  mere  permission  to  do  what  otherwise  would  be  unlaw- 

71,  74.  BuUer,  J.  :  '  The  right  has  been  injurerl.'  Should  the  defend- 
ant repeat  the  offence,  he  may  be  made  to  smart  lor  it  in  damages. 
"Williams  v.  Eslmg,  4  Barr,  486. 

1  The  action  under  the  old  system  was  '  case ',  not  trespass.  See 
p.  204  (3). 

•^  Williams  V.  Esling,  4  Barr,  486  ;  s.  c.  L.  C.  Torts,  371. 

*  Lawrence  v.  Obee,  1  Stark.  22. 

<  Gregory  v.  Piper,  9  B.  &  C  591. 


rii.vv.  IX.  §  3.]  TRESPASSES  UPON  PROPERTY.      193 

fill,  and  not  a  property  right.  The  term  '  license  or 
consent  of  the  party,'  as  here  used,  has  reference  to 
cases  in  which  there  is  nothing  be3'ond  an  express  con- 
sent, either  in  answer  to  a  request  for  permission,  or  by 
specific  or  general  invitation  b}'  the  possessor  ;  as  e.  g.  in 
the  case  of  a  shopkeeper.  Cases  of  this  kind  sufficient!}' 
explain  themselves,  and  need  not  be  dwelt  upon.  The 
term  '  license  of  the  law '  has  reference  to  cases  in  which 
a  permission  is  given  regardless  of  the  will  of  the  owner 
or  occupant,  and  includes  all  other  cases  in  which  the 
entr}'  or  taking  possession  was  lawful.  It  includes,  there- 
fore, certain  cases  in  which,  in  point  of  fact,  there  may 
at  the  same  time  be  a  license  of  the  part}' ;  as  e.  g.  in  the 
case  of  an  innkeeper,  who  both  invites,  and,  generally 
speaking,  must  receive  guests. 

In  cases  of  the  first  kind  the  license  is  revocable  in  re- 
spect of  future  acts,  though  it  be  made  b}'  contract,  unless 
it  is  '  coupled  with  an  interest ; '  the  licensor  may  be  liable 
for  breach  of  contract,  and  yet  revoke  the  license,  so  as 
to  take  away  the  licensee's  permission.^  A  license  is 
'  coupled  with  an  interest '  when  it  comprises  or  is  con- 
nected with  a  grant.^ 

The  second  kind  needs  some  special  explanation.  The 
law  licenses  an  entry  upon  the  land  of  another,  or  the 
taking  possession  of  another's  goods,  in  man}'  cases  ;  and 
in  these  the  license  cannot  be  revoked  by  the  part}' 
affected.  The  first  in  importance  of  these  cases  is  where 
the  law  has  commanded  the  entry  or  the  taking  posses- 
sion ;  the  entry  and  levy  of  a  sheriff  by  virtue  of  a  valid 
precept  being  the  chief  example.  In  such  cases  reason- 
able force  may  be  used  to  effect  an  entrance  ;  though  an 

1  Wood  V.  Leadbitter,  13  M  &  W.  838;  Hyde  v.  Graham,  1  H.  & 
C.  593.  But  the  licensee  may  sometimes  be  entitled  to  an  injunction 
against  the  revocation.     Frogley  v.  Lovelace,  Johns.  333. 

2  Wood  V.  Leadbitter,  supra,  at  p.  844. 

13 


194  LAW   OF   TORTS.  [Part  II. 

entrance  to  an  occupied  dwelling-house  cannot  be  forced, 
except  for  the  purpose  of  serving  criminal  process.^  In 
cases  in  which  the  license  of  the  law  is  only  implied,  forci- 
ble entry  can  seldom  be  made,  excejjt  in  the  case  of  an 
owner  of  land  entitled  to  take  actual  possession.-  That 
is  to  say,  apart  from  the  exceptional  cases,  the  license 
appears  to  be  conditional ;  the  entr}'  may  be  made,  pro- 
vided that  it  can  be  made  without  breach  of  the  peace.* 
The  following  are  cases  of  the  kind  :  — 

One  case  is  where  an  entry  is  made  into  an  inn,*  or 
perhaps  into  the  coach  of  a  common  carrier  of  passen- 
gers. Such  an  entry  is  lawful  if  the  party  is  in  a  fit  con- 
dition to  be  received,  paying  in  advance,  and  in  the  case 
of  a  passenger,  showing  a  ticket,^  when  required. 

A  second  case  is  where  the  party  in  possession  of  land 
has  bound  himself  by  debt  to  another,  without  any  stipu- 

1  Swain  v.  Mizner,  8  Gray,  182  ;  llsley  v.  Nichols,  12  Pick.  270  ; 
Bailey  v.  Wright,  39  Mich.  96  ;  People  v.  Hubbard,  24  Wend.  369. 
Great  exigency  affecting  the  public,  such  as  an  extensive  conflagration, 
would  probably  make  another  exception. 

2  Sampson  v.  Henry,  19  Pick.  36  ;  Churchill  v.  Hulbert,  110  Mass. 
42. 

^  Churchill  v.  Hulbert,  sujjra.  There  are  statutes  everywhere  im- 
posing penalties  for  forcible  entry  upon  premises.  Bat  the  question  is, 
whether  a  person,  having  a  license  to  enter,  is  liable  not  only  for  the 
penalties  but  also  as  a  trespasser.  It  appears  to  be  clear  that  if  the 
person  entering  is  owner  of  the  land,  and  entitled  to  take  possession, 
he  is  liable  only  to  the  penalties  of  the  statute.  Sampson  v.  Henry, 
supra  ;  Biddall  v.  Maitland,  17  Ch.  D.  174  ;  Edwick  v.  Hawkes,  18  cii. 
D.  199.  If  however  he  should  commit  an  assault  upon  the  occupant, 
that,  not  being  necessary  to  his  entry,  would  make  him  liable  for  that. 
act.  Sampson  v.  Henry,  supra.  To  enter  forcibly  in  most  other  cases 
would  bo  a  trespass  because  it  would  be  in  violation  of  the  condition 
annexed  by  law  to  the  license.  See  Churchill  v.  Hulbert,  supra  ; 
Wheelden  v.  Lowell,  50  Maine,  499. 

4  Six  Carpenters'  Case,  8  Coke,  146. 

6  See  Butler  v.  Manchester  Ry.  Co.,  21  Q.  B.  Div.  207  ;  Shelton  v. 
Lake  Shore  Ry.  Co.  29  Ohio  St.  214. 


Chap.  IX.  §  3.]     TRESPASSES  UPON  PROPERTY.  195 

lation  in  regard  to  the  place  of  payment.  In  such  a  case, 
the  creditor  is  allowed  by  law  to  enter  his  debtor's  prem- 
ises for  the  purpose  of  demanding  payment.^ 

A  third  of  these  cases  is  where  the  party  in  possession 
holds,  as  tenant,  a  piece  of  real  property  of  another.  In 
such  a  case,  the  law  allows  the  latter  to  make  an  entry 
upon  the  land  for  the  purpose  of  ascertaining  whether  his 
interests  are  properly  regarded  by  the  possessor.  For 
example  :  The  defendant  leases  land  to  the  plaintiff,  and 
subsequently  enters  to  see  if  the  latter  has  committed 
waste.     This  is  no  breach  of  duty  to  the  plaintiff.^ 

A  fourth  case  is  where  goods  have  been  placed  upon  a 
man's  land  under  a  tenancy  at  will,  or  where  goods  have 
been  sold  which  lie  upon  the  premises  of  the  vendor.  In 
the  absence  of  any  special  agreement  or  general  custom 
concerning  the  delivery  of  the  goods,  the  owner  may  go 
upon  the  premises  and  take  thera.^  For  example  :  The 
plaintiff  lets  premises  to  the  defendant  at  will,  on  the 
terms  that  the  defendant  shall  have  reasonable  time  to 
remove  his  goods,  after  notice  to  quit.  The  defendant 
enters  accordingly  after  termination  of  the  lease,  to  get 
his  goods,  against  the  plaintiff's  refusal  to  allow  him. 
This  is  no  breach  of  duty.* 

A  fifth  case  is  where  the  owner  of  land  has  wrong- 
fully burdened  another  with  the  possession  of  his  (the 
former's)  goods.  In  such  a  case,  the  goods  may  be  taken 
and  put  upon  the  owner's  premises  ;  and  neither  the  taking 
of  the  goods  nor  the  entry  upon  the  owner's  premises  is 
unlawful.  For  example  :  The  defendant  takes  an  iron 
bar   and    sledge   belonging    to   the    plaintiff,    and    puts 

1  3  Black.  Com.  212.  2  j^. 

3  Cornish  v.  Stubbs,  L.  R.  5  C.  P.  334  ;  Mellor  v.  Watkins,  L.  K. 
9  Q.  B.  400  ;  McLeod  v.  Jones,  105  Mass.  403  (sale  of  goods  on  vendor's 
land). 

*  Cornish  v.  Stubbs,  supia. 


196  LAW   OF  TORTS.  [Part  II. 

them  upon  the  plaintiff's  land  ;  the  plaintiff  having  first 
brought  them  upon  the  defendant's  premises,  and  then, 
without  permission,  having  left  them  there.  The  entry 
is  lawful.^ 

A  sixth  case  is  where  a  man's  goods,  without  his  act, 
have  got  upon  the  land  of  another.  .  In  such  a  case,  the 
owner  of  the  goods  may  enter  and  talce  them.  For  ex- 
ample :  The  defendant  enters  upon  the  plaintiff's  land  to 
get  apples,  which,  by  the  action  of  the  wind,  have  been 
blown  over  the  line,  from  the  defendant's  trees  into  the 
plaintiff's  close.  The  defendant  is  not  liable.^  Again  : 
The  defendant  enters  upon  the  plaintiff's  land  to  get  his 
own  goods  which  the  plaintiff  has  wrongfully  taken  and 
put  there.  This  is  lawful ;  ^  though  it  would  have  been 
otherwise  had  the  plaintiff  come  properly  into  possession 
of  the  goods.* 

A  seventh  case  is  where  a  person  enters  the  premises  of 
another  to  save  life  or  to  succor  a  beast  in  danger.  Such 
an  act  is  not  a  trespass  ;  but  it  is  said  that  the  case  would 
be  different  if  the  entry  was  made  to  prevent  a  person 
from  stealing  the  owner's  beast,  or  to  prevent  cattle  from 
consuming  his  corn.^  The  distinction  made  between  the 
cases  is  that  in  the  former  case  the  loss  of  the  animal 
would  be  irremediable,  that  is,  that  particular  animal 
(which  might  be  very  valuable)  could  not  be  replaced ; 

1  Cole  V.  Maundy,  Viner's  Abr.  Trespass,  516.  See  other  cases  there 
referred  to. 

2  Millen  v.  Fawdry,  Latch,  119,  120.  It  would  be  otherwise  if  the 
defendant  should  shake  the  trees.  Bacon's  Abr.  Trespass,  F.  The  ac- 
tion of  the  wind  would,  it  seems,  be  immaterial  if  the  branches  over- 
hting  the  plaintifTs  land  ;  for  that  would  itself  be  a  nuisance.  Comp. 
Penruddock's  Case,  5  Coke,  100  b.  The  defendant  should  be  allowed 
to  enter  only  when  he  is  entirely  in  the  right,  as  where  the  apples  are 
blown  over  the  fence  into  the  plaintiffs  grounds. 

«  Viner's  Abr.  Trespass,  1  (A)  ;  L.  C.  Torts,  382. 

*  L.  C.  Torts,  381.  ^  Bacon,  iit  supra. 


Chap.  IX  §  3.]     TRESPASSES   UPON   PROPERTY.  197 

while  in  the  latter  case,  the  animal  might  be  recovered 
from  the  thief,  or  tlie  corn  replaced  by  purchase  or  by  a 
new  crop :  all  corn  being  substantially  alike.  The  dis- 
tinction, however,  sounds  mediaeval. 

An  eighth  case  is  where  the  plaintiff  brings  or  suffers  a 
nuisance  upon  his  premises,  to  the  peculiar  injury  of  his 
neighbor.  In  a  case  like  this,  the  latter  may  enter  and 
abate  the  nuisance.  For-  example  :  The  defendant  enters 
upon  the  plaintiff's  premises,  and  removes  the  eaves  of  a 
shed,  which  overhang  the  defendant's,  land  and  in  rainy 
w^eather  drip  upon  his  premises.  This  is  no  breach  of 
duty  to  the  plaintiff.* 

A  ninth  case  is  where  an  entry  has  been  made  upon 
land  of  another  by  reason  of  necessity,  without  the  fault 
of  the  person  entering.  Such  an  entry  is  justifiable. 
For  example :  The  defendant  runs  into  the  plaintiff's 
premises  to  escape  a  savage  animal,  or  the  assault  of  a 
man  in  pursuit  of  him.  The  defendant  is  not  liable.^ 
Again  :  The  defendant  enters  upon  the  plaintiff's  premises 
to  pass  by  a  portion  of  the  highway  which  at  this  point 
is  wholly  flooded,  but  without  the  act  of  the  defendant. 
The  entry  is  justifiable.^ 

It  has  already  been  seen  that  a  trespass  to  property 
consists  in  an  unlawful  entry  of  land  or  taking  of  goods,* 
and  a  trespass  by  imprisonment  in  an  unlawful  aiTest. 
There  is  one  case,  however,  in  which,  by  reason  of  sub- 

1  Penruddock's  Case,  5  Coke,  100  b;  L.  C.  Torts,  383,  where  vari- 
ous distinctions  as  to  suck  cases  are  mentioned. 

2  Year  Book,  37  Hen.  VI.  p.  37,  pi.  26. 
■♦  Absor  V.  French,  2  Show.  28. 

*  Where  A's  goods  are  nnlawfnlly  sold  and  delivered  by  B,  must 
the  former  make  demand  for  them  before  he  can  sue  for  the  trespass  ? 
The  question  is  not  so  important  now  as  formerly,  for  suit  is  more  gen- 
erally brought  in  such  cases  for  conversion.     See  post,  p.  221. 


198  LAW  OF  TORTS.  [Part  II. 

sequent  acts,  a  person  may  be  treated  as  a  trespasser 
notwithstanding  the  lawfiihiess  of  the  entry  or  taking 
possession,  or  of  tlie  arrest ;  the  result  thus  being  to  de- 
prive tlie  party  of  the  justification  of  the  lawfulness  of 
the  original  act,  and,  by  a  fiction  of  law,  to  make  him  a 
trespasser  ab  initio.  According  to  this  fiction,  one  who 
has  taken  possession  of  goods,  or  entered  upon  land,  by 
virtue  of  a  license  of  the  law,  becomes  a  trespasser  ab 
initio  (notwithstanding  the  lawfulness  of  the  levy  or  en- 
try), where  afterwards,  while  acting  under  the  license, 
he  commits  an  act  which  in  itself  amounts  to  a  trespass.^ 
For  example  :  The  defendant,  a  sheriff,  remains  an  un- 
reasonable length  of  time  in  the  plaintiff's  house  in  pos- 
session of  goods  taken  l)y  him  in  execution.  He  is  a 
trespasser  ab  initio. - 

But,  in  order  to  become  a  trespasser  ab  initio,  the  sub- 
sequent act  must,  it  has  been  held,  be  a  technical  tres- 
pass, or  at  least  show  a  purpose  to  make  use  of  the 
license  as  a  mere  cover  for  a  wrongful  act.  If  this  is  not 
the  case,  —  if  the  entry  was  in  good  faith,  and  the  subse- 
quent act  was  not  a  trespass,  —  the  party  is  not  to  be 
treated  as  a  trespasser  from  the  beginning,  though  the  act 
committed  be  wrongful  and  subject  him  to  liability.  For 
example :  The  defendant,  an  officer,  enters  upon  the 
plaintiff's  premises  by  virtue  of  a  lawful  writ,  to  malce  a 
levy  for  debt.  While  there,  in  the  course  of  his  business 
as  an  officer,  he  wrongfully  extorts  money  from  the  plain- 
tiff. He  is  not  a  trespasser  from  the  beginning  of  his 
entry,  though  the  extortion  was  a  breach  of  duty  for 
which  he  would  be  liable  in  damages  ;  extortion  not  being 
a  trespass.^   Again  (an  English  example)  :  The  defendant 

1  Six  Carpenters'  Case,  8  Coke,  1 46  ;  L.  C.  Torts,  386. 

2  Asli  V.  Dawnay,  8  Ex.  237  ;  Rowley  v.  Rice,  11  Met.  337. 

3  Shorland  v.  Govett,  5  B.  &  C.  485.  See  Six  Carpenters'  Case, 
supra.     But  compare  Holley  v.  Mix,  3  Wend.  350.     If  tlie  entry  under 


Chap.  IX  §  3  ]        TRESPASSES  UPON  PROPERTY.  199 

refuses  to  drop  a  distress  on  the  plaintiff's  goods,  upon 
due  tender  by  the  plaintiff  of  the  rent  due.  The  de- 
fendant is  not  a  trespasser.^ 

These  examples,  on  consideration,  will  show  the  impor- 
tance of  the  doctrine  of  trespass  ab  initio.  If  the  per- 
son's conduct  make  him  obnoxious  to  this  doctrine,  it 
follows  (probabl}')  that  all  acts  done,  such  as,  in  the  case 
of  an  officer,  levies  made,  intermediate  the  entry  and  the 
trespass,  are  void  ;  since,  his  entry  being  a  trespass,  he 
could  not,  according  to  general  principles  of  law,  there- 
after do  an  act  against  the  will  of  the  occupant  which 
would  be  legal.^  Besides,  he  would  be  liable  for  the  entry 
as  well  as  the  after  acts.  The  doctrine  does  not,  there- 
fore, concern  the  form  of  remedy  alone. 

This  doctrine  of  trespass  ab  initio  applies,  however, 
only  against  persons  who  have  entered  or  taken  goods  by 
license  of  law.  A  person  cannot  treat  as  a  trespasser 
from  the  begiuning  one  to  whom  he  has  himself  given 
permission  to  enter  or  take  his  goods,  whatever  be  the 
nature  of  his  subsequent  acts.^  For  example  :  The  de- 
fendant, by  permission  of  the  plaintiff's  wife,  enters  the 
plaintiff's  house  in  his  absence,  and  while  there  Mrong- 

thft  writ  was  merely  to  cover  the  purpose  to  extort,  there  would  proba- 
bly be  a  trespass  ab  initio.  Comp.  Grainger  v.  Hill,  4  Biug.  N.  C.  212, 
ante,  pp.  70,  132.  That,  it  seems,  suggests  the  true  distinction.  Six 
Carpenters'  Case,  supra.     See  also  ante,  p.  142,  note  4. 

1  West  V.  Nibb^,  4  C.  B.  172. 

2  Compare  Ilsley  v.  Nichols,  12  Pick.  270,  denying  certain  dicta  of 
the  books.  Ilsley  v.  Nicliols  decides  that  a  levy  made  liy  breaking 
open  the  outer  door  of  an  occupied  dwelling-house  (a  house  is  a  man's 
castle)  is  invalid,  and  the  officer  is  liable  for  the  value  of  the  goods 
taken  as  well  as  for  the  unlawful  entry.  The  same  result  should  in 
principle  follow  if,  by  an  act  subsequent  to  the  entry,  he  become  a 
trespasser  from  the  beginning. 

*  Six  Carpenters'  Case,  supra  ;  Esty  v  Wilmot,  15  Gray,  168 ; 
Allen  V.  Crofoot,  5  Wend,  .506. 


200  LAW   OF   TORTS.  [Pakt  II. 

fully  gets  possession  of  papers,  aud  carries  them  away. 
This  does  not  make  him  a  trespasser  ah  initio.^ 

As  where  the  entry  was  made  in  good  faith  the 
subsequent  act  must  amount  to  a  trespass,  it  becomes 
necessary  to  ascertain  somewhat  precisely  the  technical 
signification  of  the  term.  It  is  difficult  to  define  a  tres- 
pass,  but  the  following  will  serve  to  indicate  the  proper 
meaning  of  the  term  :  (1)  Any  wrongful  contact  with  the 
plaintiff's  person  is  a  trespass.  (2)  Any  wrongful  entry 
upon  the  plaintiff's  land  or  interference  with  the  plaintift"s 
possession  of  personalty  is  a  trespass.  (3)  Any  wrong- 
ful act  committed  directly  with  force  is  a  trespass,  though 
no  i)hysical  contact  with  the  person  of  the  plaintiff"  or  with 
his  property  be  produced  ;  as  in  the  case  of  an  imprison- 
ment without  contact,  or  the  firing  a  gun  under  the  plain- 
tiff's window,  to  alarm  the  inmates  of  his  house.  In 
cases  like  these,  force  is  said  to  be  implied.  Upon  the 
same  ground,  the  seduction  of  the  plaintiff's  wife,  daugh- 
ter, or  servant  might  perhaps  be  considered  as  a  tres- 
pass, and  the  act  has  sometimes  been  so  treated  by  the 
courts  ;  ^  the  consent  given  was  not  the  plaintift"s  consent. 
But  the  later  view  is  different.^ 

On  the  other  hand,  (1)  a  mere  non-feasance  (that  is,  a 
pure  omission)  cannot  be  a  trespass  ;  *  (2)  nor  can  there 
be  a  trespass  where  the  matter  affected  was  not  tangible, 
and  hence  could  not  be  immediately  injured  by  force,  as 
in  the  case  of  an  injury  to  reputation  or  health  ;  (3)  nor 
can  there  be  a  proper  trespass  where  th'e  right  affected 
is  incorporeal,  as  a  right  of  common  or  way ;  (4)  nor 
where    the  interest   injured    exists    in   reversion    or    re- 

1  Allen  V.  Crofoot,  5  Wend.  506. 

2  TuUulge  V.  Wade,  3  Wils.  18  ,  1  Chitty,  Pleading,  126,  133. 

3  Macfadzen  v.  Olivant,  6  East,  387  Chitty,  however,  prefers  the 
old  doctrine.     1  Pleading,  133. 

*  Six  Carpenters'  Case,  8  Coke,  146. 


Chap.  IX.  §3.]     TRESPASSES   Ul'ON   PROPERTY.  201 

maiiider ;  (5)  nor  where  there  is  no  right  of  action  imme- 
diate upon  the  act  in  question.^ 

Lastly,  to  constitute  a  trespass  to  property,  the  thing 
affected  must,  it  is  laid  down,  be  capable  of  ownership 
us  .property.  Wild  animals,  untamed,  are  deemed  prop- 
erty only  while  in  the  actual  or  constructive  possession 
of  the  keeper ;  upon  effectual  and  final  escape,  they 
cease  to  be  property,  and  may  be  killed,  or  taken  and 
retained  by  any  one,  at  least  if  he  is  not  aware  of  the 
prior  ownership.  And  a  wild,  savage  animal  straying 
at  large  may  be  killed,  though  the  owner  be  known  to 
be  in  pursuit.^ 

A  man  may  have  property  in  a  dog  even  though  the 
animal  may  not  have  any  certain  pecuniary  value. ^  The 
same  is  })robably  true  of  rare  animals  kept  for  study,  for 
exhibition,  for  breeding,  or  even  as  pets.*  No  one  there- 
fore has  a  right  to  take  these  from  the  owner,  or  to  keep 
them  from  him  when  taken  up  as  strays,'^  or  needlessly  to 
kill  them.''  But  there  are  circumstances  when  the  law 
justifies  the  killing  of  another's  animals  ;  a  man  may  not 
only  protect  himself  or  another  from  the  attack  of  a  beast, 
he  may  kill  an  animal,  in  some  cases,  which  is  doing  mis- 
chief, as  a  dog  which  is  biting  or  worrying  his  sheep  or 
other  valuable  animals  or  fowls. ^     Indeed,  a  savage  dog, 

1  See  1  Chitt}',  Pleading,  166.  But  qurere  whether  the  effect  of  the 
rule  of  trespass  ah  initio  might  not  be  had  in  some  of  these  cases,  as  in 
the  third  and  fourth  ? 

2  2  Kent,  Com.  348,  349.     See  post,  p.  269,  note  1. 

3  Dodson  V.  Meek,  4  Dev.  &  B.  146  ;  Wheatly  v.  Harris,  4  Sneed, 
468. 

*  See  Araory  v.  Flyn,  10-Johns.  102,  as  to  wihl  animals  tamed. 
6  Id. 

0  Dodson  V.  Meek  and  "Wheatly  v.  Harris,  supra. 
T  King  V.  Kline,  6  Rarr,  318  ;  Woolf  v.  Chalker,  31  Conn.  121  ; 
Brown  v.  Hohurger,  52  Barb.  15, 


202  LAW   OF  TORTS.  [Paut  II. 

suffered  to  run  at  large  without  a  muzzle,  and  disposed  to 
attack  or  snap  at  people,  may  be  treated  as  a  nuisance 
and  killed  by  any  one  ;  and  tliat,  too,  whether  at  the  time 
the  dog  was  doing  harm  or  not.^ 

A  man  may,  however,  keep  a  ferocious  dog  as  a  watch 
over  his  premises,  if  properly  secured ;  while  the  dog  is 
in  such  a  situation,  no  one  may  lawfully  kill  it,  unless  in- 
deed it  is  then  making  an  attack  upon  man  or  beast. ^  It 
would  doubtless  be  lawful  to  kill  the  dog  to  save  the  life 
of  even  a  burglar. 

A  word  may  be  added  in  regard  to  trespassing  animals. 
The  law  is  very  plain  and  natural ;  trespassing  will  sel- 
dom justify  killing  or  maiming,^  or  even  detaining  upon  a 
claim  for  anything  more  than  reimbursement  of  necessary 
expenses  and  payment  of  damage  doue.  And  if  detained, 
the  animals  must  be  taken  care  of  and  properly  treated.* 
On  the  other  hand,  if  driven  away,  that  must  be  done 
without  unnecessary  violence ;  such  violence  would  be  a 
trespass.  For  example  :  The  defendant,  finding  the  plain- 
tiff's horse  straying  upon  his  premises,  sets  a  savage  dog 
upon  it,  and  the  horse  is.  seriously  hurt.  The  defendant 
is  liable  in  damages.^ 

1  Putnam   v    Payne,    13   Johns.   312  ;  Maxwell  v.  Palmerston,  21 
Wend.  407  ;  Brown  v.  Carpenter,  26  Vt.  638. 

2  See  Perry  v.  Pliipps,  10  Ired.  259. 

3  See  Aldrich  v.  Wright,  53  N.  H.  398,  an  important  case,  in  which 
a  killing  was  held  proper. 

4  Murgoo  V.  Cogswell,  1  E.  D.  Smith,  359. 
&  Amick  V.  0  Hara,  6  Blackf,  258. 


CHAPTER  X. 
CONVERSION. 

§  1.     Introductory. 

Statement  of  the  dutij.  A  owes  to  B  the  duty  to  forbear 
to  exercise  domiuiou  (1)  over  B's  general  property  in 
personal  chattels ;  (2)  over  B's  special  property  in  the 
like  things. 

1.  Bj'  '  general  property '  is  commonly  meant  the  own- 
ership of  property,  subject,  it  may  be,  to  a  special  prop- 
erty for  a  time  in  another. 

2.  By  '  special  property  '  is  meant  a  right  of  possession 
coupled  with  possession  ;  tlie  right  being  general,  as  in 
the  case  of  a  lien  creditor,  or  limited,  as  in  the  case  of  a 
finder. 

3.  By  '  bare  possession'  merely  is  commonly  meant  a 
mere  custody  ('  detention ')  or  a  possession  unlawfully 
obtained. 

4.  The  action  for  converting  property  was  formerly 
and  is  still  often  called  '  trover,'  a  term  meaning  '  to  find,' 
which  was  used  in  the  old  precedents  of  declaration  ;  the 
plaintiff,  by  a  fiction,  alleging  that  he  had  lost  and  the 
defendant  had  found  and  converted  to  his  own  use  the 
chattel  in  question.^ 

5.  The  action  of  '  trover  '  is  an  action  to  recover  (not 
specific  articles,  but)  damages  for  the  conversion  of  chat- 
tels personal,  to  the  value  of  the  interest  converted. 

1  The  allegation  was  at  first  probably  real,  arising  perhaps  from  the 
common  action  for  strays.     See  L.  C.  Torts,  422. 


204  LAW   OF   TORTS.  [Part  IL 

6.  By  an  '  act  of  dominion '  is  meant  an  act  tantamount- 
to  an  exercise  of  ownership. 

7.  The  action  of  detinue  is  not  much  used  in  modern 
times.  Its  object  is  to  recover  chattels  in  specie,  or  dam- 
ages for  their  non-return  if  they  cannot  be  had,  and  dam- 
ages for  the  wrongful  detention.  It  has  been  superseded 
largely  by  the  statutory  action  of  replevin  and  by  trover. 
The  principles  set  forth  in  this  chapter  apply,  generally 
speaking,  to  all  three  of  these  actions. 

8.  As  in  trespass,  so  in  trover,  detinue,  and  replevin, 
the  thing  alleged  to  have  been  converted  must  be  capable 
of  ownership  as  property.^ 

§  2,     Of  Possession. 

The  possession  of  a  chattel  personal,  that  is,  of  a  mov- 
able article,  or  a  right  to  take  possession  thereof,  is  neces- 
sary to  support  an  action  for  conversion,  just  as  it  is  to 
support  an  action  for  trespass.  The  plaintiff  fails  in 
trover  if  it  appear  that  he  has  never  acquired  a  right  of 
possession,  or  if  he  has,  that  he  has  parted  with  it,  and 
has  not  before  suit  become  reinvested  with  the  same. 
For  example  :  The  plaintiff  is  the  purchaser  of  goods, 
which,  however,  remain  in  the  seller's  possession  subject 
to  a  lien  for  the  purchase  price.  The  defendant,  without 
autliority,  removes  the  goods  from  the  seller's  possession, 
doing  no  permanent  injury  to  them.  This  is  no  breach 
of  duty  to  the  plaintiff.'^  Again  :  The  defendant,  a  sheriff, 
wrongfully  levies  upon  goods  of  the  plaintiff  in  the  hands 
of  a  lessee  of  the  property,  and  carries  the  goods  away. 
The  plaintiff  cannot  treat  the  act  as  a  conversion  (though 
the  tenant  could),  since  the  plaintiff  was  not  entitled  to 
the  possession  of  the  property.^ 

1  See  ante,  p.  205.  ^  j^ord  v.  Price,  L.  K.  9  Ex.  54. 

3  Gordon  v.  Harper,  7  T.  R.  9,  See  Farrant  v.  Thompson,  5  B.  & 
Aid.  826  ;  ante,  p.  184. 


Chap.  X.  §  2.]  CONVERSION.  205 

On  the  other  hand,  the  right  to  the  possession  of  the 
chattels  is  sutlicient  to  enable  the  general  owner  to  sue  for 
a  conversion  thereof,  though  he  may  not  have  the  actual 
possession  at  the  time  of  the  wrongful  act ;  because,  as 
was  stated  in  tlie  preceding  chapter,  the  right  to  take  pos- 
session of  goods  draws  tlie  possession  in  contemplation  of 
law.  For  example  :  The  defendant  buys  and  takes  away 
a  chattel  belonging  to  the  plaintiff  from  A,  who  had  no 
right  to  sell  it.  The  plaintiff,  being  the  owner,  is  deemed 
to  have  been  in  possession  of  the  chattel  at  the  time  of 
the  conversion  bj^  the  defendant.' 

A  person  having  the  special  property  in  goods,  with 
general  right  of  possession,  can  maintain  an  action  for 
conversion  against  all  persons  wlio  may  wrongfully  exer- 
cise dominion  over  them,  though  the  act  be  done  by 
command  of  the  owner  of  the  goods.  For  example  :  The 
defendant  takes  a  horse  out  of  the  possession  of  the  plain- 
tiff, the  plaintiff  having  a  lien  upon  the  animal.  The  de- 
fendant acts  by  direction  of  the  owner,  but  without  other 
authority.     He  is  liable  for  conversion  of  the  horse. '^ 

It  follows  that  a  person  having  a  special  property  in 
goods,  together  with  general  riglit  of  possession  of  them, 
may  maintain  an  action  against  the  owner  himself  for 
any  unpermitted  disturbance  or  refusal  of  his  possession  ; 
since,  if  the  owner  cannot  give  an  authority  to  another  to 
take  the  goods,  he  cannot  take  them  himself.  For  example  : 
The  defendant,  owner  of  a  title-deed,  in  the  possession  of 
the  plaintiff  under  a  temporary  right  to  hold  it,  takes  it  by 
permission  of  the  plaintiff  for  a  particular  purpose,  and 
then,  during  the  continuance  of  the  plaintiff's  right  to  hold 

1  Hyde  v.  Noble,  13  N.  H.  494  ;  Clark  v.  Rideout,  39  N.  H.  238  ; 
Carter  v.  Kingman,  103  Mass.  517 

2  See  Outcalt  v.  Durling,  1  Dutch.  443.  The  form  of  action  in  this 
case  was  trespass,  but  it  might  as  well  liave  been  trover.  The  injured 
party  could  sue  in  either  form  in  such  cases. 


206  LAW  OF  TORTS.  [Part  II. 

it,  refuses  to  redeliver  it.  The  defendant  lias  violated  his 
duty  to  the  plaintiff,  and  is  liable  for  conversion.-^ 

One  who  has  a  possession  of  chattels,  though  without  a 
right  to  hold  them  against  the  owner,  is  also  protected 
against  all  persons  having  neither  a  I'ight  of  property 
nor  of  possession.  The  mere  fact  that  the  possessor  of 
goods  has  no  right  to  hold  them  against  persons  having 
a  general  or  higher  special  property  in  the  goods,  gives 
no  privilege  to  a  stranger  to  interfere  with  the  party's 
possession.  So  to  interfere  would  be  a  breach  of  duty  to 
the  possessor  which  would  render  the  person  interfering 
liable  for  the  value  of  the  goods.  For  example  :  The 
defendant,  a  stranger,  refuses  to  return  to  the  plaintiff  a 
jewel,  which  the  latter  has  found  and  shown  to  the  defend- 
ant. The  defendant's  act  is  a  breach  of  duty  to  the  plain- 
tiff, and  he  is  liable  for  the  value  of  the  jewel. ^ 

It  would  be  different,  however,  if  the  defendant  acted 
under  express  authority  of  the  owner,  or  of  one  entitled  to 
the  possession  of  the  property.  But  it  is  laid  down  that 
the  defendant  could  not  set  up  the  rights  of  a  third  per- 
son (called  the  'jus  tertii')  without  authority  from  the 
latter.^  That  is,  the  defendant  can  deny  the  plaintiff's 
right  only  by  showing  a  better  right  in  himself.* 

The  finding  of  a  chattel  does  not,  however,  in  all  cases 
give  a  right  to  hold  the  article  against  all  persons  having 
no  right  of  property  in  it ;  though  the  finding  and  taking 

1  Roberts  v.  Wyatt,  2  Taunt.  268. 

2  Armory  v.  Delaniirie,  1  Strange,  505  ;  s.  c.  L.  C.  Torts,  388. 

3  Rogers  ■!;.  Arnold,  12  Wend.  30  (suit  to  recover  the  cliattels  spe- 
cifically) ;  Jefferies  v.  Great  Western  Ry.  Co.  5  El.  &  B.  802  ;  Cliees- 
man  v.  Exall,  6  Ex.  341  ;  L.  C.  Torts,  426.  Does  this  mean  that 
possession  in  itself,  however  obtained,  will  be  protected,  — that  it  can- 
not be  shown  e.g.  that  the  plaintiff  stole  the  property  ?  See  ante, 
p.  182,  note. 

*  Hubbard  v.  Lyman,  8  Allen,  520  ;  Landon  v.  Emmons,  97  Mass. 
37. 


Chap.  X.  §  2.]  CONVERSION.  207 

possession  were  not  unlawful  as  against  the  loser.  The 
chattel  may  be  found  upon  the  premises  of  another,  in  such 
a  situation  as  to  indicate  that  it  was  A^oluntarily  put  in 
possession  of  the  owner  of  the  premises.  When  this  is  the 
case,  the  possession  of  the  article  is  deemed  to  be  in  tlie 
occupant  of  the  premises,  and  not  in  the  finder.  The 
former  can  therefore  maintain  an  action  for  conversion 
against  the  latter,  should  he  refuse  to  surrender  to  him 
the  chattel.  For  example  :  The  defendant,  a  barber,  re- 
ceives from  the  plaintiff,  a  customer  in  his  shop,  a  pocket- 
book  containing  money,  which  tlie  plaintiff  has  discovered 
lying  upon  a  table  in  the  defendant's  shop.  The  plaintiff, 
in  handing  the  pocket-book  to  the  defendant,  tells  him  to 
keep  it  until  he  can  discover  the  owner,  and  then  return  it 
to  the  loser.  No  one  having  called  for  the  article,  the 
plaintiff  claims  it,  and  the  defendant  refuses  to  give  it  to 
him.  This  is  not  a  breach  of  duty  to  the  plaintiff,  since 
the  fact  that  the  pocket-book  was  left  upon  the  defend- 
ant's table  indicates  that  the  owner  put  it  there  by  in- 
tention, and  so  put  it  into  the  defendant's  keeping  or 
possession.^ 

If,  however,  the  chattel  be  found  in  a  position  which 
indicates  that  it  could  not  have  been  purposely  put  there, 
but  must  have  been  unintentionally  parted  with,  and  so 
truly  lost  the  moment  it  escaped  the  owner,  it  does  not 
fall  into  the  keeping  or  possession  of  the  occupant  of  the 
premises  unless  he  (or  his  servant)  first  discover  it  there. 
If  another  first  find  it,  the  possession,  as  between  himself 
and  the  occupant,  is  in  him,  the  finder.  For  example  : 
The  defendant,  a  shop-keeper,  receives  from  the  plaintiff  a 
parcel,  containing  bank-notes,  which  the  latter  has  picked 
up  from  the  floor  of  the  defendant's  shop  ;  the  plaintiff,  on 
handing  the  parcel  to  the  defendant,  telling  him  to  keep 

1  McAvoy  V.  Medina,  11  Allen,  548. 


208  LAW  OF   TORTS.  [Part  II. 

the  same  till  the  owner  claims  it.  The  defeudaut  adver- 
tises the  parcel,  but  no  one  claims  it,  and  three  years 
having  elapsed,  the  plaintiff  requests  the  defendant  to 
return  to  him  the  bills,  at  the  same  time  tendering  the  cost 
of  advertising,  and  even  offering  an  indemnity.  The  de- 
fendant refuses.  This  is  a  breach  of  duty  to  the  plaintiff, 
and  the  defendant  is  liable  to  him  for  conversion  of  the 
parcel.-^ 

The  term  '  possession '  has  the  same  meaning  here,  and 
indeed  everywhere  in  the  law  of  torts,  that  it  has  in  cases 
of  trespass.^  Thus,  a  servant  can,  it  seems,  only  hold  ; 
the  possession  is  the  master's.  For  example  :  The  de- 
fendant takes  goods  out  of  the  hands  of  the  planitiff,  a 
sheriff's  deputy,  without  authority.  The  act  is  deemed 
not  a  breach  of  duty  to  the  plaintiff,  since  he  is  but  a 
servant,  and  so  holds  not  in  his  own  right ;  ^  though  it 
would  be  otherwise  in  regard  to  the  sheriff. 

§  3.     Of  What  constitutes  Conversion. 

It  has  been  seen  that  conversion  consists  in  the  exercise 
of  an  act  of  dominion  over  the  movables  of  another  ;  that 
is,  it  is  a  usurpation  of  ownership.  And  it  matters  not 
whether  this  was  done  with  or  without  knowledge  of  the 
true  state  of  the  title,  as  will  be  seen  ;  every  man  acts  at 
his  peril  in  exercising  acts  of  dominion  over  property.* 
The  distinction  between  trespass  and  conversion  consists 
in  this,  that  trespass  is  an  unlawful  taking,  as  for  the 

^  Bridges  v.  Hawkesworth,  21  L.  J.  Q.  B.  75. 

2  Ante,  p.  182.  The  meaning  there  ascribed  to  the  term  is  intended 
to  be  of  the  widest  application,  where  the  possession  is  real. 

3  Hampton  v.  Brown,  13  Ired.  18;  ante,  p.  183. 

*  See  a  qualification  stated  in  Rollins  v.  Fowler,  L.  E.  7  H.  L.  757, 
768,  Lord  Blackburn,  in  regard  to  dealing  with  goods  at  the  request  of 
a  person  having  actual  custody  of  them,  in  the  bona  fide  belief  that 
such  person  is  owner,  or  has  the  owner's  authorit\\ 


Chap  X.  §  3.]  CONVERSION.  209 

mere  sake  of  removing  the  property,  while  conversion  is 
an  unlawful  taking  or  keeping  in  the  exercise,  legally  con- 
sidered, of  the  right  of  ownership.^ 

Acts  of  dominion  appear  in  two  forms  ;  first,  where 
the  wrongdoer  appropriates  to  himself  the  goods  of  an- 
other;  secondly,  where,  without  appropriatmg  them  to 
himself,  he  deprives  the  owner,  or  person  having  the 
superior  right,  of  their  use,  by  an  act  of  ownership. 

The  most  common  illustration  of  an  act  of  dominion  in 
the  first  form  is  the  case  of  a  sale  and  delivery  of  goods, 
made  without  authority  of  the  owner.  Every  sale  without 
restriction  by  a  person  having  no  right  to  sell  is  a  con- 
version, if  followed  by  delivery,  and  renders  the  vendor 
lialjle  in  an  action  of  trover.-  For  example  :  The  defend- 
ant, an  officer,  levies  upon  goods  as  the  property  of  a  third 
person,  some  of  which  belong  to  the  plaintiff,  takes  them 
away,  after  being  informed  of  the  plaintiff's  claim,  and 
sells  the  whole.  This  is  a  conversion  of  the  plaintiff's 
goods  ;  though  it  would  have  been  otherwise  had  the  goods 
been  mixed  by  the  plaintiff  with  those  of  the  third  person,^ 
and  a  separation  not  offered  by  the  plaintiff'.^ 

The  same  consequence  follows  where,  having  authority 
to  make  a  sale,  the  party  selling  transgresses  his  right ; 
since  to  do  so  is  to  assert  that  he  may  sell  according  to 
his  own  will,  and  that  is  to  exclude  the  rights  of  all  others. 
For  example :  The  defendant,  an  officer,  makes,  unneces- 
sarily, an  excessive  levy  upon  the  plaintiff's  goods,  under 
a  valid  writ,  and  sells  them.     This  is  a  conversion,  since 


1  See  Bushel  v.  Miller,  1  Strange,  129  ;  Fouldes  v.  Willoiigliby,  8  M. 
&  W.  540,  551,  Rolfe,  B. 

■2  Qufere,  whether  a  demand  would  be  necessary  ?     See  post,  p.  221. 
8  Oilman  v.  Hill,  36  N.  H.  311. 
*  See  2  Kent,  Com.  365. 

14 


210  LAW  OF  TORTS.  [Part  II. 

it  is  done  in  disregard  of  the  defendant's  authorit}',  and 
according  to  the  party's  own  will.^ 

This  principle  that  the  sale  of  property  with  delivery  is 
an  act  of  dominion  so  as  to  render  the  seller  liable  for 
conversion  if  he  had  no  right  to  sell  as  he  did,  applies 
equally-  whether  the  vendor  knew  or  did  not  know  the 
true  state  of  the  title,  or  the  actual  limit  of  his  authority. 
Liability  for  converting  the  goods  of  another  to  one's  own 
use  does  not  depend  upon  the  intent  of  the  party  exercis- 
ing the  act  of  dominion.  For  example  :  The  defendant 
sells  and  delivers  a  horse  of  the  plaintiff  to  a  third  person, 
the  defendant  having  bought  the  animal  from  one  who 
had  no  title  to  it,  though  the  defendant  supposed  the  con- 
trary, and  supposed  himself  to  be  owner  of  the  horse  at 
the  time  of  the  sale  in  question.  The  defendant  is  liable 
for  conversion.'^ 

Where  the  purchaser's  vendor  had  acquired  his  supposed 
title  from  the  plaintiff  b^-  means  of  a  sale  effected  by  false, 
or  even  b}'  fraudulent,  representations,  the  case  would  be 
different.  Fraud  of  this  character  renders  the  sale  voida- 
ble merely,  and  not  void  ;  the  consequence  of  which  is, 
that  the  defrauded  party  has  a  right  to  rescind  the  sale 
onl}-  so  long  as  the  property  remains  in  the  hands  of  the 
buyer  from  himself,  or  of  an}-  one  claiming  under  him  who 
is  not  a  purchaser  for  value  without  notice.^  Inasmuch 
as  the  buyer,  notwithstanding  his  fraud,  acquired  the  title 
to  the  goods,  he  can   conve}'  that  title  ;  and  more,  he  can 

»  Aldred  v.  Constable,  6  Q.  B.  .370,  381.  See  Somiier  ;•.  Wilt,  4 
Serg.  &  R  19;  Stewart  v.  Cole,  46  Ala.  646.  So  to  pledge  the  goods 
of  another  without   authority.     Carpenter  v.  Hale,  8  Gmy,  1.57. 

2  Harris  I'.  Saunders,  2  Strobh.  Eq.  370,  note;  Carter  ;•.  Kingman, 
103  Mass.  517.  See  McCombie  v.  Davies.  6  East,  538;  Hilbery  v. 
Hatton,  33  L.  J.  Ex.  190;  Eowler  r.  Hollins,  L.  R.  7  Q.  B.  616;  s.  c. 
7  H.  L.  757. 

8  Clough  V.  North-western  Ry.  Co.  L.  R.  7  Ex.  26. 


Chap  X.  §  3.]  CONVERSION.  211 

convey  a  better  right  tliau  he  had  himself,  provided  he 
sell  to  a  purchaser  for  value  witliout  notice. 

Hence,  not  only  would  such  purchaser  be  free  from  lia- 
bility iu  refusing  to  return  the  goods  to  the  defrauded 
party,  but  should  that  party  obtain  possession  of  them 
and  refuse  to  deliver  them  to  the  purchaser  from  the  in- 
termediate seller,  he  (the  defrauded  party)  would  himself 
be  liable  in  trover.  For  example  :  The  defendants,  hav- 
ing previously  been  owners  of  a  quantity  of  iron,  sell  the 
same  to  P,  who  gives  them  a  fraudulent  draft  (supposed 
by  the  defendants  to  be  good)  for  the  amount  due  for  the 
property.  P  then  sells  the  iron  to  the  plaintiff,  who  buys 
for  value,  and  without  notice  of  the  fraud.  Subsequently, 
the  defendants  discover  the  fraud,  and  send  their  servant 
to  take  away  the  iron,  now  lying  in  port  in  a  lighter 
alongside  the  plaintiff's  wharf.  The  servant  takes  away 
the  lighter  and  brings  the  u'on  therein  to  the  defendants. 
The  plaintiff  has  acquired  a  good  title  to  the  iron,  and  the 
defendants  are  guilty  of  a  conversion.^ 

There  are  other  cases  in  which  a  person  may  by  pur- 
chase for  value  and  without  notice  acquire  a  better  title 
than  his  vendor  had.  A  purchaser  of  goods  from  one 
who  has  b}'  the  terms  of  sale  reserved  the  right  to  buy 
back  the  property  within  a  certain  time,  acquires  (or  may 
by  such  a  transaction  acquire)  the  title  to  the  property, 
and,  having  a  good  title,  he  may  convey  the  same  to  one 
who  purchases  for  value  and  without  notice,  so  as  to  cut 
off  the  original  owner's  right  to  repurchase.  The  conse- 
quence is,  that  the  last  purchaser  is  not  guilty  of  a  con- 
version by  refusing  to  let  the  original  owner  have  the 
goods  upon  a  tender  by  him  of  the  amount  he  was  to  pay 
for  them,  though  made  within  the  time  agreed  upon  be- 

1  White  V.  Garden,  10  C.  B.  919.  See  for  the  converse  case,  Ciindy 
».  Lindsay,  3  App.  Cas.  459. 


212  LAW  OF  TORTS.  [Part  II. 

tween  him  and  his  buyer.  The  case  would  be  different, 
however,  in  regard  to  the  buyer  from  the  original  owner. 
His  act  in  making  the  sale  would,  indeed,  be  lawful 
against  the  seller,  if  the  seller  should  never  offer  to  re- 
purchase ;  but  if  the  seller  should  offer  to  repurchase,  and 
tender  the  price,  his  purchaser  would  be  bound  to  return 
to  him  the  goods,  and,  in  case  of  failure,  would  be  liable 
according  to  the  terms  of  the  contract. 

If,  however,  the  sale  were  upon  condition  that  the  title 
should  not  pass  until  the  performance  of  some  condition, 
the  party,  not  having  acquired  the  title,  could  not  convey 
it ;  and  an  attempt  to  do  so  by  a  sale  and  delivery  would, 
by  the  better  rule,  subject  the  buyer  to  liability  for  con- 
version. For  example  :  The  defendants  purchase  furni- 
ture from  W,  who  had  taken  possession  of  the  same  upon 
an  agreement  that  he  should  keep  it  six  months,  and  if 
within  that  time  he  should  pay  a  certain  sum  for  it,  it 
should  be  his  ;  otherwise,  he  was  to  pay  twenty-five  per 
cent  of  the  price  for  the  use.  The  sale  to  the  defendants 
is  made  shortly  after  W  takes  possession  of  the  furniture 
and  before  payment  for  it.  A  refusal  by  the  defendants 
to  restore  the  property  to  the  plaintiff  is  a  breach  of  duty 
to  him,  and  makes  them  liable  for  the  value  of  the 
furniture.^ 

According  to  recent  authorities,  the  holder  of  a  pledge 
or  pawn  has  such  an  interest  in  the  chattel  that  he  can 
dispose  of  the  same  by  sale  or  repledge  without  subject- 
ing the  purchaser  or  repledgee  to  liability,  and  without 
subjecting  himself  thereto,  except  in  either  case  upon  a 
failure  to  produce  the  pledge  or  pawn  upon  tender  of  the 
debt  to  secure  which  the  chattel  was  given.     For  exam- 

1  Sargent  v.  Gile,  8  N.  H.  325,  denying  Vincent  v.  Cornell,  13 
Pick.  294.  According  to  the  latter  case,  the  conditional  buyer  would, 
by  the  sale,  transfer  his  own  right,  such  as  it  was.  See  Coggill  v. 
Hartford  R.  Co.  3  Gray,  545 ;  Deshon  v.  Bigelow,  8  Gray,  159. 


Chap.  X.  §3]  CONVERSION.  '  213 

pie  :  The  defendant  has  taken  in  pledge  from  S  certain 
bonds,  which  the  plaintiff  had  pledged  to  S  for  the  secu- 
rity of  a  debt  smaller  than  the  amount  of  the  debt  of  S 
to  the  defendant ;  the  repledge  being  made  before  the  ma- 
turity of  the  original  debt,^  and  before  payment  or  tender 
thereof.  The  refusal  of  the  defendant  to  return  the  bonds 
to  the  plaintiff  except  on  tender  to  the  defendant  of  the 
amount  due  to  S  is  not  a  A'iolatiou  of  duty  to  the  plaintiff  ; 
nor  would  the  act  of  S  amount  to  a  conversion,  imless 
upon  tender  of  the  debt  due  to  him  he  should  fail  to  return 
the  bonds.  ^ 

One  who  has  a  special  property  in  goods  may  or  may 
not  be  able  to  dispose  of  his  interest  therein,  according  to 
the  nature  of  his  interest.  Not  every  special  property  is 
alienable.  In  many  cases  of  bailment,  the  special  objects 
to  be  effected  forbid  that  the  bailee  should  have  an  assign- 
able interest.  Such  is  the  case  ( 1 )  where  the  bailment  is 
made  upon  a  trust  in  the  personal  skill,  knowledge,  or 
efficiency  of  the  bailee.  Such  is  the  case  (2)  where  the 
bailee  has  a  mere  lien  upon  the  goods  entrusted  to  him. 
And  such  is  the  case  (3)  where  the  bailment  is  at  the 
bailor's  will.  In  an}^  of  these  cases,  any  attempt  by  the 
bailee  to  assign  his  interest  in  the  property,  followed  b}'  de- 
livery of  possession,  puts  an  end  at  once  to  the  bailment. 
The  consequence  is,  that  the  assignee  acquires  no  title  or 
right,  and  becomes  liable  on  refusing  to  surrender  the 
goods  to  the  owner,  eA^en  if  not  by  merely  taking  them. 

There  is,  however,  a  large  class  of  bailments  where  the 
trust  is  accompanied  with  other  incidents  than  those  per- 

1  That  is,  while  the  bonds  were  still  subject  to  redemption  by  the 
plaintiff. 

2  Donald  v.  Suckling,  L.  R.  1  Q.  B.  58.'i ;  s.  c.  L.  C.  Torts,  394. 
To  pledge,  without  authorit}',  another's  property  held  in  simple  bail- 
ment would  be  a  very  different  thing.  Carpenter  v.  Hale,  8  Gray,  157, 
infra,  p.  216. 


214  LAW   OF  TORTS.  [Part  It 

taining  to  a  simple  bailment,  and  where  there  is  no  ele- 
ment of  personal  trust,  and  none  of  the  characteristics  of 
an  estate  at  will ;  and  in  this  class  it  is  clear  that  the 
bailee  has  an  assignable  interest.  There  can  be  no  con- 
version, therefore,  in  the  act  of  transferring  such  an  in- 
terest merely,  provided  the  assignee  claims  only  the  rights 
of  the  assignor ;  because  the  latter,  having  exercised  no 
act  of  dominion  over  the  property,  but  having  dealt  sim- 
ply with  his  own  interest,  did  not  reinvest  the  owner  with 
a  right  of  possession.  An  attempt  by  the  bailee  to  dis- 
pose of  the  goods  absolutely,  however,  would  be  different, 
if  followed  by  a  delivery  of  them.  For  though  a  bailee 
could  not,  without  fault  on  the  part  of  the  owner  (by 
holding  him  out  as  having  a  right  to  sell  absolutely),  dis- 
pose of  anything  beyond  his  own  interest,  the  attempt  to 
do  so,  followed  by  the  overt  act,  would  be  to  exercise 
dominion  over  the  goods. ^ 

It  is  not  always  necessary  that  there  should  be  an  ap- 
propriation of  the  entire  property  held  in  order  to  effect 
a  conversion  of  the  whole.  If  the  part  appropriated  be 
necessary  to  the  use  of  the  rest  in  the  purpose  to  which 
the  whole  was  to  be  put,  as  by  rendering  an  intended  sale 
impracticable  except  at  a  sacrifice,  the  pai-t  appropriation, 
if  wrongful,  inay^  it  seems,  be  a  conversion  of  the  whole. 
For  example  :  The  defendant,  a  bailee  by  tlie  plaintiff  of 
wine  in  casks  for  sale  by  the  cask,  consumes  part  of  the 
wine  in  one  cask.  This  may  (probably)  be  treated  as  a 
conversion  of  all  the  wine  in  that  cask.-  Again  :  The  de- 
fendant finds  a  raft  of  timber  belonging  to  the  plaintiff 
lodged  on  a  sandbar  in  a  stream,  takes  possession  of  it, 

1  See  ante,  p.  209  ;  Lancashire  Wagon  Co.  v.  Fitzliugh,  G  H.  &  N. 
502  ;  Cooper  v.  Willomatt,  1  C.  B.  672. 

2  Philpott  V.  Kelley,  3  Ad.  &  E.  lOS,  semble.  The  case  was  not  so 
strong  as  the  facts  put  in  the  example.  See  Clendon  v.  Dinneford,  5 
Car.  &  P.  13  ;  Gentry  v.  Madden,  3  Pike,  127. 


Chap.  X.  §  3.]  CONVERSION.  215 

hires  a  man  to  assist  him  in  removing  part  of  it,  and  sells 
the  rest  to  him,  reserving  the  part  removed.  This  may 
be  treated  as  a  conversion  of  the  whole  raft.' 

It  appears  to  be  immaterial  to  the  plaintiff's  right  of  re- 
covery for  the  whole,  that  what  remains  is  still  in  itself  as 
good  as  if  tliere  had  been  no  severance ;  the  plaintiff  has 
the  right  to  the  benefit  to  be  obtained  from  it  in  its  en- 
tirety, where  that  is  a  special  benefit.  This  principle 
would  apply  to  cases  where  separate  articles  are  delivered 
under  one  entire  contract  of  bailment  or  lease,  even 
though  the  articles  be  separately  enumerated  and  valued. 
The  bailment  or  lease  is  still  indivisible  in  contemplation 
of  law,  and  conversion  of  part  may  be  conversion  of  the 
whole. ^ 

If,  however,  separate  articles  be  severally  bailed  or 
leased,  by  distinct  contracts,  though  all  be  delivered  and 
bargained  for  at  the  same  time,  the  rule  of  law  is  (prob- 
ably) different ;  a  conversion  of  one  of  the  articles  or  parts 
would  not  in  such  a  case  operate  as  a  conversion  of  the 
whole. 

If  the  owner  of  goods  stand  by  and  permit  them,  with- 
out objection,  to  be  sold  as  the  property  of  another,  the 
purchaser  acquires  a  good  title,  and  is  not  liable  to  the 
owner  for  a  refusal  to  deliver  them  to  liim.^  For  example  : 
The  defendant  purchases  machinery  of  M,  the  legal  title 
to  which  at  the  time  of  the  sale  is  in  the  plaintiffs.  The 
machinery  is  sold  uuder  a  levy  of  execution  against  M, 
and  the  plaintiffs,  though  having  notice  of  the  levy,  and 
having  repeatedly  conversed  about  it,  before  the  sale, 
with  the  attorney  of  the  party  who  made  the  levy,  never 
laid  any  claim  to  the  property  until  after  the  sale.     The 

1  Gentry  v.  Madden,  3  Pike,  127. 

2  See  Clendon  v.  Dinneford,  5  Car.  &  P.  13;  Gentry  v.  Madden,  supra. 
8  Pickard  v.   St-ars,  6  Ad.  &  E.   469  ;  Stephens  v.  Baird,  9  Cowen. 

274  ;  Dezcll  v.  Odell,  3  Hill,  215. 


216  LAW  OF   TORTS.  [Pakt  IL 

defendant's  refusal  to   surrender   the  machinery  to  the 
plaintiff  is  not  a  breach  of  duty.^ 

Appropriating  an  article  held  in  bailment  to  a  use  not 
contemplated  at  the  time  of  the  contract  of  bailment  r.nd 
not  authorized  by  law,  may  also  constitute  conversion. 
F'or  example  :  The  defendant  hires  of  the  plaintiff  a  horse 
to  ride  to  York,  and  rides  it  beyond  York  to  Carlisle. 
This  is  a  conversion  of  the  animal,  entitling  the  plaintiff, 
on  return  of  the  property,  at  least  to  nominal  damages, 
and  to  actual  damages  if  any  loss  be  in  fact  sustained 
by  reason  of  the  act.^  Again  :  The  defendant  lends  money 
to  E,  taking  from  him  by  way  of  security  a  quantity  of 
leather,  wiiich  had  been  placed  in  E's  hands  by  the  plain- 
tiff to  be  made  up  into  boots,  on  hire.  The  defendant 
refuses  to  surrender  the  leather  to  the  plaintiff.  He  is 
guilty  of  conversion. 3  Again  :  The  defendant  receives 
from  the  plaintiff  shares  of  stock  to  be  sold  on  commis- 
sion. Instead  of  selhng,  the  defendant  exchanges  the 
stock  for  other  property.     This  is  a  conversion.* 

It  has  sometimes  been  supposed  that  there  can  be  no 
rio'ht  of  action  for  conversion  in  such  cases,  unless  the 
chattel  was  injured  in  the  misappropriation.^  But  there 
is  ground  for  doubting  the  correctness  of  this  doctrine. 
The  foundation  of    the    action  is  the  usurpation  of  the 

1  Pickard  v.  Sears,  2  Ad.  &  E.  469. 

2  Isaack  v.  Clark,  2  Balst.  306  ;  Perham  v.  Coney,  117  Mass.  in2. 
8  Carpenter  v.  Hale,  8  Gray,  157. 

*  Haas  V.  Damon,  9  Iowa,  589.  The  buyer  would  not  be  liable  if 
the  act  was  within  the  general  scope  of  the  agent's  authority,  and  with- 
out notice  of  the  breach  of  duty. 

5  Johnson  v.  Weedman,  4  Scam.  495  ;  Harvey  v.  Epes,  12  Gratt. 
153.  In  the  first  of  these  cases  a  horse  which  the  defendant  had  con- 
verted died  on  his  hands,  directly  after  but  not  in  consequence  of  the 
conversion.  It  was  held  that  the  owner  had  no  cause  of  action.  The 
plaintiff  was  not  entitled  to  recover  the  value  of  the  horse,  but  he  had 
a  cause  of  action,  it  should  seem. 


Chap.  X.  §  3  ]  CONVERSION.  217 

owner's  right  of  property.  It  is  true,  tlie  plaintiff  in 
trover  seeks  to  recover  the  value  of  the  thing  converted, 
but  if  he  has  received  it  back,  or  possibly  if  it  has  been 
tendered  back  in  proper  condition,^  he  will  be  allowed  to 
recover  no  more  (beyond  nominal  damages)  than  the 
amount  of  his  loss.^  But  conversion  itself  is  a  cause  of 
action  ;  it  is  not  necessary  to  prove  special  damage. 

In  all  the  foregoing  cases,  it  will  be  observed  that 
there  is  something  more  than  an  assertion,  by  word  of 
mouth,  of  dominion  over  the  chattel.  An  assertion  alone, 
not  followed  by  any  act  in  pursuance  of  it,  such  as  a  re- 
fusal to  surrender  the  chattel  to  the  person  entitled  to 
possession,  would  not  amount  to  a  conversion.  There 
must  be  some  unauthorized  interference  with  the  plaintiff's 
right  of  possession.  Even  an  attempted  exercise  of  do- 
minion, without  right,  appears  to  be  insufficient  to  con- 
stitute a  conversion,  if  the  owner's  right  was  not  in  fact 
interrupted.  For  example  :  The  defendant,  by  an  officer, 
makes  a  declaration  of  attachment  of  goods  which  he 
knows  is  already  duly  levied  upon  by  the  plaintiff,  has 
a  keeper  appointed  and  then  suffers  the  owner  of  the 
attached  property  to  take  it  away  and  sell  it,  and  re- 
ceives part  of  the  avails.  This  is  deemed  not  a  con- 
version.^ 

1  There  is  some  doubt  of  the  right  to  tender  back  the  converted 
chattel,  though  it  has  not  been  injured,  especially  if  the  conversion  was 
'wilful.'  See  Hart  v.  Skinner,  16  Vt.  138  ;  Oieen  v.  Sperry,  id.  390. 
Rut  see  Delano  v.  Curtis,  7  Allen,  470,  475.  Further  see  Yale  v. 
Saunders,  16  Vt.  243  ;  Stephens  v.  Koonce,  103  N.  Car.  266. 

2  Fisher  v.  Prince,  3  Burr.  1363  ;  Earle  v.  Holderness,  4  Bing.  462  ; 
Cook  V.  Hartle,  8  Car.  &  P.  568  ,  Hewes  v.  Pai-kman,  20  Pick.  90,  95. 
Judgment  for  the  plaintiff  in  trover  does  not  vest  the  property  in  the 
defendant.  Lovejoy  v.  Murray,  3  Wall.  1  ;  Brady  v.  Whitney,  24 
Mich.  154  ;  Brinsmead  v.  Harrison,  L.  R.  6  V.  P.  584. 

*  Policy  V.  Leno.x  Iron  Works,  2  Allen.  182,  adopting  the  language 
of  Heath,  J.  in  Bromley  v.  Coxwell,  2  B.  &  P.  438,  that  '  to  support  an 


218  LAW  OF  TORTS.  [Part  IL 

Thus  far  of  cases  in  which  the  defendant  has  appro- 
priated the  goods  in  question  to  his  own  use.  But,  as 
has  been  stated,  a  wrongful  act  of  dominion  may  be 
committed  without  so  appropriating  the  goods.  It  is 
enough  that  the  defendant  has  wrongfully  deprived  the 
plaintiff  of  the  possession  of  his  goods  or  usurped  his 
rights  over  them,  though  for  the  benefit  of  a  third 
person. 

In  cases  of  this  kind  it  was  formerly  supposed  that  an 
intention  to  deprive  the  plaintiff  of  his  goods  was  neces- 
sary ;  but  this  has  been  decided  to  be  incorrect.  The 
question  still  is  whether  there  has  been  a  wrongful  exer- 
cise of  dominion  by  the  defendant ;  if  there  has  been 
an  unauthorized  act  which  deprived  the  plaintiff'  of  his 
property  permanently  or  for  an  indefinite  tune,  there  has 
been  a  conversion.^  If  not,  the  contrary  is  true.  For 
example  :  The  defendant,  manager  of  a  ferry,  receives  on 
board  his  boat  the  plaintiff,  with  two  horses.  Before 
starting,  the  plaintiff  is  reported  to  the  defendant  as  be- 
having improperly,  and  though  he  has  paid  his  fare  for 
transportation,  and  the  defendant  tells  hhn  that  he  will 
not  carry  the  horses,  and  that  they  must  be  taken  ashore, 
the  plaintiff  refuses  to  take  them  off  the  boat,  where- 
upon the  defendant  puts  them  ashore,  and  has  them  taken 
to  a  livery  for  keeping.  The  plaintiff  goes  with  the  boat, 
and  the  next  day  sends  to  the  livery  stable  for  his  horses. 
In  reply,  the  plaintiff  is  told  that  he  can  have  his  horses 
l)y  coming  and  paying  the  charges  for  keeping,  otherwise 
they  would  be  sold  to  pay  expenses.  Tliey  are  sold 
accordingly,  and  damages  as  for  a  conversion  are  sought 
of  the  defendant.  The  action  is  not  maintainable,  since 
there  is  nothing  to  show  that  the  defendant  wrong- 
action  of  trover  there  must  be  a  positive  tortious  net.'  Here  the  de- 
fi-mluit  was  merely  'suffered  '  to  take  and  sell  the  property. 

1  Hiort  V.  Bott,  L.  R.  9  Ex.  86,  89,  Bramvvell,  B. 


C-HAP.  X.  §  3]  CONVERSION.  219 

fully  deprived  the  plaintiff,  even  for  a  moment,  of  his 
property.^ 

Any  asportation  of  a  chattel,  however,  for  the  use  of  a 
third  person  amounts  to  a  conversion,  for  the  reason  that 
the  act  is  inconsistent  with  the  right  of  dominion  which 
the  owner  (or  person  entitled  to  possession)  has  in  it.^ 
And  the  same  is  true  of  an  intentional,  or  possibly  negli- 
gent, destruction  of  the  chattel.^ 

In  the  case  of  acts  of  co-owners  (cotenants)  it  is  held 
by  many  authorities  that  nothing  short  of  a  substantial 
destruction  of  the  common  property  by  the  wrongful  act 
of  one  of  them  can  make  him  liable  to  the  other  or  others 
for  conversion.*  This  is  on  the  ground  that  each  of  the 
common  owners  has  a  right  to  the  entire  possession  and 
use  of  the  property.  A  sale  and  delivery,  though  abso- 
lute, would  not  be  enough ;  for  the  purchaser  would  only 
become  a  co-owner  with  the  others.^  By  many  other 
authorities  it  is  held  that  a  sale  and  delivery  of  the  prop- 
erty, absolutely,  would  suffice.^  Some  authorities  even 
treat  the  mere  withholding  of  the  chattel  by  a  cotenant 
from  his  fellow,  or  the  misuse  of  it,  or  the  refusal  to  sever 
and  terminate  the  cotenancy,  as  a  conversion. '^     But  it 

^  FouMes  V.  Willoughby,  8  M.  &  W.  540.  For  other  examples,  see 
Simmons  v.  Lillj-stone,  8  Ex.  431  ;  Thorogood  v.  Robinson,  6  Q.  B. 
769. 

2  Fouldes  V.  Willoughby,  supra.  ^  Id. 

*  Farrar  r.  Beswick,  1  M.  &  W.  682,  688,  Parke,  B.  ;  Morgan  v. 
Marquis,  9  Ex.  145  ;  Mayhew  v.  Herrick,  7  C.  B.  229  ;  Oviatt  v.  Sage, 
7  Conn.  95  ;  Barton  v.  Burton,  27  Vt.  93  ;  Pitt  v.  Petway,  12  Ired. 
69.     Corap.  the  case  of  trespass,  ante,  pp.  186-188. 

5  Morgan  v.  Marquis,  supra,  Parke,  B. 

«  Weld  V.  Oliver,  21  Pick.  559;  Wilson  v.  Eead,  3  Johns.  175; 
Dyckman  v.  Valiente,  42  N.  Y.  549  ;  White  v.  Brooks,  43  N.  H.  402  ; 
Dain  v.  Coning,  22  Maine,  347  ;  Arthur  v.  Gayle,  38  Ala.  559  ;  Wil- 
liams V.  Chadbourne,  6  Cal.  559. 

7  Agnew  V.  Johnson,  17  Penn.  St.  373  ;  Piquet  v.  Allison,  12  Mich. 
328.     See  Strickland  v.  Parker,  54  Maine.  263. 


220  LAW  OF   TORTS.  [Part  IL 

is  not  necessary  by  any  of  the  authorities  that  there 
should  be  a  physical  destruction  of  the  property,  as  by 
breaking  it  in  pieces ;  it  is  enough  that  the  common  in- 
terest, or  rather  the  plaintiff's  interest,  is  practically 
destroyed,  as  by  a  sale  by  the  cotenant  and  the  buyer's 
taking  the  property  into  another  State,  there  to  be 
kept.^ 

If  an  act,  in  and  of  itself  being  a  conversion,  has 
been  committed,  the  injured  part}'  is  entitled  to  bring 
suit  without  first  demanding  his  property.  In  other 
cases,  a  demand  and  wrongful  refusal  will  be  necessary, 
since  without  them  there  has  been  no  wrongful  exercise 
of  dominion.^  For  example  :  The  defendant  colhisively 
purchases  goods  from  a  tiader  on  the  eve  of  tlie  trader's 
bankruptcy,  and  takes  the  property  into  his  own  posses- 
sion. The  assignee  of  the  trader  brings  trover  without 
a  demand.  Tlie  action  is  not  maintainable,  since  the 
defendant  had  been  guilty  of  no  conversion  ;  the  trader 
being  competent  to  contract,  though  his  contract  of  sale 
was  liable  to  impeachment.^ 

Of  the  last  example,  it  should  be  observed  that  (in  ac- 
cordance with  a  principle  already  stated)  the  fraud  of  the 
trader  and  the  defendant  did  not  make  the  sale  void  ;  its 
only  effect  was  to  render  it  voidable.  The  contract  was 
therefore  binding  until  disaffirmed ;  and  a  disaffirmance 
could  be  made  only  by  a  demand  of  the  goods,  or  by 
some  act  tantamount  thereto.  And  the  demand  and  re- 
fusal, that  is,  the  conversion,  must  be  apart  from  the 
bringing  of  suit,  when  such  acts  are  necessary  ;  for  the 
catise  of  action  must  have  arisen  before  suit  was  begun. 
In  the  example  given,  if  the  defendant  had  sold  the  goods, 

1  Pitt  V.  Petway,  12  Ired.  69. 

2  Chitty,  Pleading,  157  ;  Nixon  v.  Jenkins,  2  H    Black.  135. 
^  Nixon  V.  Jenkins,  supra. 


Chap.  X.  §  3.]  CONVERSION.  221 

or  improperly  detained  them  after  a  disaffirmance  of  the 
sale,  the  action  would  have  been  maintainable.^ 

Whether  a  demand  is  necessary  where  property  has 
been  sold  and  delivered  by  one  having  no  authority  to 
sell,  has  been  a  point  of  conflict  of  authority.  The  better 
view,  however,  is  that  the  unauthorized  sale  and  delivery 
are  sufficient  to  constitute  a  conversion,  and  hence  that  de- 
mand before  suit  is  not  necessary."^  It  is  conceded  that  if 
the  buyer  has  taken  the  goods  away,  there  is  a  conversion.^ 

A  very  common  instance  of  the  necessity  of  demand 
and  refusal  is  wliere  goods  have  been  put  into  the  hands 
of  another  for  a  special  purpose,  upon  agreement  to  return 
them  when  the  purpose  is  accomplished  ;  in  regard  to 
which  the  rule  is,  that  a  breach  of  the  contract  by  the 
mere  failure  so  to  return  the  goods  does  not  amount  to  a 
conversion.  Before  the  bailee  can  be  liable  in  trover  in 
such  a  case,  supposing  there  had  been  no  misappropria- 
tion or  other  act  of  dominion,  there  must  be  a  demand  for 
the  goods  and  a  refusal  to  restore  them.^  An  unquali- 
fied refusal  will  itself,  in  almost  all  cases,  constitute  a 
conversion.^ 

A  qualified  refusal  to  deliver  goods  on  lawful  demand 
may,  however,  be  only  prima  facie  evidence  of  a  conver- 
sion.®     The  defendant  may  have  found  the  goods,  and 

1  Bfoxam  v.  Hubbard,  5  East,  407. 

2  Galvin  v.  Bat'on,  2  Fairf.  28  ;  Parsons  v.  Webb,  8  Greeiil.  38  ; 
Stanley  v.  Gaylord,  1  Cusli.  536  ;  Trudo  v.  Anderson,  10  Midi.  357  ; 
Whitman  Mining  Co.  v.  Tritle,  4  Nev.  494.  Contra,  Marshall  v.  Davis, 
1  Wend.  109  ;  Barrett  v.  Warren,  3  Hill,  348  ;  Nash  v.  Mosher,  19 
Wend.  4.31 ;  Talmadge  v.  Scudder,  38  Penn.  St.  517  ;  Sherry  v.  Pick- 
en,  10  Ind.  375;  Justice  v.  Wendell,  14  B.  Mon.  12. 

3  Ely  V.  Ehle,  3  Comst.  506 ;  Nash  v.  Mosher,  supra  ;  Marshall  v. 
Davis,  supra. 

*  Severin  v.  Keppell,  4  Esp.  156. 
6  Alexander  v.  Southey,  5  B.  &  Aid.  247,  250. 
6  Burroughes  v.  Bayne,  5  H.  &  N.  296  ;   Alexander  v.  Southey, 
supra. 


222  LAW  OF  TORTS.  [Part  II. 

refused  to  sniTender  them  to  the  plaintiff  until  he  shall 
have  proved  his  right  to  them.  It  follows  from  what  has 
already  been  said  that  such  a  refusal  is  justifiable,  since, 
if  the  plaintiff  is  not  entitled  to  the  goods  by  right,  the 
defendant  as  finder  has  the  better  claim  ;  and  he  cannot 
or  may  not  know  that  the  plaintiff  may  not  be  a  pretender 
until  he  has  furnished  evidence  that  he  is  not.  And 
other  cases  of  the  kind  might  be  stated  ;  ^  the  only  ques- 
tion, where  the  refusal  to  return  is  qualified,  is  whether 
it  is  reasonable.^ 

If  the  demand  be  not  made  upon  the  defendant  himself, 
but  merely  left  at  his  house  in  his  absence,  it  seems  that 
a  reasonable  tune  and  opportunity  to  restore  the  goods 
should  be  suffered  to  elapse  before  the  defendant's  non- 
compliance with  the  demand  can  be  treated  as  a  refusal 
amounting  to  a  conversion.  Non-compliance  with  the 
demand  after  a  reasonable  opportunity  has  been  afforded 
to  obey  it  is,  however,  clearly  tantamount  to  a  refusal, 
and  is  presumptive  evidence  of  a  conversion,  thus  requir- 
ing the  defendant  to  explain  that  the  omission  to  deliver 
the  goods  was  justifiable.^ 

1  See  Pollock,  Torts,  306,  307,  2d  ed. 

2  Alexander  v.  Soutliey,  5  B.  &  Aid.  at  p.  250. 

3  1  Chitty,  Pleading,  160  j  Thompson  v.  Rose,  16  Conn.  71 ;  White 
V.  Demary,  2  JST.  H.  546. 


CHAPTER  XI. 

INFRINGEMENT  OF  PATENTS,  TRADE  MARKS,  AND 

COPYRIGHTS. 

§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  to 
forbear  to  make,  use,  or  vend,  without  B's  license,  a  thing 
patented  by  B  ;  (2)  to  forbear,  without  B's  license,  to 
print,  publish,  or  import  an}^  copyrighted  book  of  which 
B  owns  the  copyright,  or  knowing  the  same  to  be  so 
printed,  published,  or  imported,  to  sell  or  expose  for  sale 
any  copy  of  such  book  ;  aud  to  forbear  to  violate  the 
rights  of  B  in  respect  of  any  other  copyrighted  matter  of 
"which  B  owns  the  copyright.^ 

§  2.    Of  Patents. 

The  Revised  Statutes  of  the  United  States  grant  to 
patentees,  their  heirs  and  assigns,  for  the  term  of  seven- 
teen 3'ears,  the  exclusive  right  to  make,  use,  and  vend  the 
patented  article  throughout  the  United  States  and  the 
territories  thereof ;  ^  and  for  an  infringement  they  allow 
(besides  bills  in  equity  for  equitable  protection)  an  action 
on  the  case  in  the  name  of  the  party  interested,  cither 
as  patentee,  assignee,  or  grantee.^ 

That  for  which  the  laws  give  patents  is  '  invention,' 
something,  that  is  to  say,  which  is  created  by  original 
thought,  not  something  which  is  discovered  except  in  the 

'  It  would  make  the  statement  of  this  duty  far  too  prolix  to  spe- 
cify all  of  the  rights  and  duties  arising  under  this  last  clause. 
3  U.  S.  Rev.  Sts.  §  4884.  3  lb.  §  4919. 


224  LAW   OF  TORTS.  [Part  II. 

narrower  sense  of  discovery.  When  therefore  the  word 
'  discovery '  is  used  of  something  patented,  it  must  be  un- 
derstood in  the  sense  of  '  invention.'  The  laws  of  nature 
may  be  discovered  by  man,  but  they  cannot  be  invented 
by  him ;  hence  discovery  of  them  cannot  be  patented.^ 
'  Principle '  or  'scientific  principle '  is  often  used  in  this 
sense  of  a  law  of  nature,  and  in  that  sense  falls  without 
the  patent  laws. 

Invention  may  cover  processes,  however,  in  which  any 
of  the  laws  of  nature  are  called  into  use ;  but  it  is  the 
process  (or  '  principle '  or  '  discovery  '  in  that  sense)  that 
is  patentable,  not  the  law  of  nature,  though  that  law  may 
never  have  been  known  before.  And  then  with  regard  to 
processes,  it  is  not  processes  generally  that  may  be  pa- 
tented. A  merely  mechanical  process,  or  rather  the  effect 
produced  by  such  a  process,  cannot  be  patented ;  or  as 
the  law  has  been  laid  down  from  the  bench,  '  a  man  can- 
not have  a  patent  for  the  function  of  a  machine,'  -  for  that 
would  be  to  prevent  the  use  of  better  machines  for  per- 
forming the  same  function  or  attaining  the  same  result.^ 
The  processes  necessary  for  making  the  machine  may  be 
patented,  not  the  effect  or  result  to  be  produced  (except 
with  reference  to  patents  for  designs).  In  a  word,  those 
processes  are  patentable  which  look  to  results  which  are 
to  be  produced  otherwise  than  by  any  particular  machine 
or  by  means  not  purely  mechanical.* 

Anything  to  be  the  subject  of  a  A'alid  patent  must, 
besides  being  the  subject  of  invention,  be  new  and 
useful.^ 

1  Telephone  Cases,  126  U.  S.  531  ;  O'Reilly  v.  Morse,  15  How.  112  ; 
Walker,  Patents,  §  2,  2d  ed. 

^  Corning  v.  Burden,  15  How.  252,  268.  ^  Id. 

4  Walker,  §  6  ;  Mowry  v.  Whitney,  14  Wall.  620  ;  Tilghman  v. 
Proctor,  102  U.  S.  707  ;  Telephone  Cases,  126  U.  S.  531. 

s  Fermentation  Co.  v.  Maus,  122  U.  S.  413,  427  ;  Telephone  Cases, 
126  U.  S,  533. 


Chap.  XI.  §  2.]     ESTFRINGEMENT  OF  PATENTS,  ETC.       225 

Having  the  foregoing  considerations  in  mind,  the  spe- 
cific subjects  of  patent,  by  the  laws  of  the  United  States, 
are  the  following  ;  arts,  machines,  manufactures,  compo- 
sitions of  matter,  and  designs.^  These  terms  are  not  in- 
tended to  be  used  with  perfect  exactness,  and  yet  within 
certain  limits  they  are  intended  to  l)e  in  a  general  way 
exclusive  of  each  other ;  a  patent  would,  however,  be 
good,  generally  speaking,  if  it  fell  under  any  one  of  the 
subjects  named,  tlioiigh  it  might  have  been  improperly 
assigned  in  the  letters-patent  to  a  particular  subject.  But 
notwithstanding  their  inexactness,  the  terms  have  legal 
limits,  and  things  which  do  not  fall  within  the  legal  mean- 
ing of  any  of  them  cannot  be  covered  by  patents.  Thus 
the  word  '  manufacture  '  has  in  the  American  law  of  pat- 
ents a  narrow  and  technical  meaning  ;  it  appears  to  be 
limited  to  such  things  as  are  made  by  the  hand  of  man, 
not  embraced  within  the  legal  meaning  of  arts,  machines, 
compositions  of  matter,  or  designs.^ 

Attention  will  now  be  turned  to  infringement.  This 
must  consist  in  the  wrongful  making,  using,  or  vending 
tlie  patented  thing.  But  the  statutes  leave  it  to  the 
courts  to  determine  what  constitutes  a  making,  using,  or 
vending. 

Generally  speaking,  an  infringement  in  the  making 
takes  place  whenever  another  avails  himself  of  the  sub- 
ject of  the  invention  of  the  patentee,  without  such  varia- 
tion as  will  constitute  a  new  discovery  ;  or  an  infringement 
is  a  copy  made  after  and  agreeing  with  the  principle  laid 
down  in  the  specification  of  the  patent.^  When  a  person 
has  obtained  a  patent  for  a  new  invention  or  a  discovery 
made  by  his  own  ingenuity,  it  is  not  in  the  power  of  any 
one  else,  by  simply  varying  in  form  or  in  immaterial  pai'- 

1  Walker,  §§  2,  20.  2  ij_  §  17. 

3  Curtis,  Patents,  §  289  ;  Calloway  v.  Bleaden,  Webs.  Pat.  Cas.  52a 

15 


226  LAW  OF   TORTS.  [Part  II. 

ticulars  the  nature  or  subject-matter  of  such  invention  or 
discovery,  either  to  obtain  a  patent  for  it  himself,  or  to 
use  it  without  the  leave  of  the  patentee.  The  question 
then  is,  in  actions  for  damages  for  infringements  of  this 
nature,  not  merely  whether,  in  form  or  condition  such  as 
might  be  more  or  less  immaterial,  that  which  has  been 
done  varies  from  the  specification,  but  whether  in  reality, 
in  substance,  and  in  effect,  the  party  has  availed  himself 
of  the  patentee's  invention,  in  order  to  make  the  thing  in 
question.^ 

It  matters  not  therefore  that  the  person  complained  of 
has  succeeded  in  obtaining  a  patent  for  his  supposed  in- 
vention or  discovery  ;  if  it  be  in  substance  and  effect  a 
copy  of  the  plaintiff's  specification  and  patent,  he  will  be 
guilty  of  a  breach  of  duty  to  the  latter  by  the  making, 
using,  or  vending  of  the  subject  of  it,  assuming  of  course 
that  the  plaintiff's  patent  is  valid. 

AVith  regard  to  machines,  it  is  often  a  point  of  difficulty 
to  decide  wdiether  a  patent  is  infringed,  since  the  same 
elements  and  the  same  power.s  must  be  employed  in  all 
machines.  The  criterion  of  liability  is,  however,  easily 
stated  ;  it  is  whether  the  machine  complained  of  operates 
upon  the  same  '  principle  '  with  the  one  patented.  The 
material  question  must  therefore  be,  not  whether  the  same 
elements  of  motion  or  the  same  component  parts  are  used, 
but  whether  the  given  effect  is  produced  substantially  by 
the  same  mode  of  operation,  and  the  same  combination  of 
powers  in  both  machines.  Mere  colorable  differences  or 
slight  improvements  cannot  affect  the  right  of  the  original 
inventor.^ 

1  Walton  V.  Potter,  Webs.  Par.  Cas.  585,  Tindal,  C.  J.  ;  O'Reilly  v. 
Morse,  15  How.  62,  123  ;  MeCorniick  v.  Talcott,  20  How.  402,  405  ; 
Morley  Machine  Co.  v.  Lancaster,  129  U.  S.  263,  273. 

2  Odiorne  v.  Winkley,  2  Gal.  51  ;  McCormick  i;.  Seymour,  2  Blatchf. 
240  ;  Blanchard  v.  Beers,  Id,  418. 


Chap.  XL  §  2.1     INFRINGEMENT  OF  PATENTS,  ETC.        227 

It  follows  that  the  question  of  iufringement  in  such 
cases  does  not  necessarily  depend  upon  the  consideration 
whether  the  mechanical  structure  of  the  machines  is  alike. ^ 
Whatever  be  the  mechanical  structui'e,  the  question  is, 
whether  the  later  machine  contains  the  means  or  combi- 
nation found  in  the  previous  one  ;  in  a  word,  whether  the 
new  idea  is  embodied  in  the  machine  com]>lained  of.  If 
the  plaintiff's  combination  be  found  substantially  incor- 
porated into  the  defendant's  machine,  then  the  latter's 
mechanical  constructiou,  whatever  it  may  be,  is  in  law 
but  an  equivalent  for  the  mechanical  construction  of  the 
plaintift"'s  machine.  No  man  is  allowed  to  appropriate 
the  benefit  of  the  new  ideas  which  another  has  originated 
and  put  to  use,  because  he  may  have  been  enabled,  by  su- 
perior mechanical  skill,  to  embody  them  in  a  different 
form.  In  appropriating  the  idea,  he  may  have  appro- 
priated all  that  is  valuable  in  the  new  machine."^ 

The  mere  fact  that  the  machine  alleged  to  be  an  in- 
fringement does  its  work  better,  or  turns  out  more  work 
in  the  same  time,  than  the  patented  article,  does  not  show 
that  there  is  no  infringement.  This  superiority  might  be 
due  merely  to  superior  construction  upon  the  same  princi- 
ple with  that  of  the  patented  machine.  On  the  other  hand 
the  fact  that  the  defendant's  machine  is  inferior  to  that 
of  the  plaintiff  does  not  show  that  it  is  not  an  infringe- 
ment.^ Either  result  is  only  to  be  considered  in  its  bear- 
ing upon  the  question  whether  the  principle  of  the  machine 
complained  of  is  actually  and  substantially  different  from 
that  of  the  plaintiff."     Of  course,  if  the  greater  or  lesser 

1  O'Reilly  v.  Morse,  15  How.  62,  123  ;  Moray  v.  Lockwood,  8  WalL 
230  ;  Ives  v.  Hamilton,  92  U.  S.  426,  431. 

2  Blanchard  v.  Beers,  supra. 

3  Waterbiiry  Brass  Co.  v.  Miller,  9  Blatchf.  77  ;  Chicago  Fruit 
House  Co.  V.  Busch,  2  Biss.  472. 

*  Id.  ;  Gray  v.  James,  Peters,  C.  C.  394  ;  Pitts  v.  Wemple,   1  Biss. 


228  LAW  OF  TORTS.  [Part  IL 

efficiency  be  produced  by  reason  of  the  use  of  means  which 
are  different  in  substance  from  those  employed  in  the 
patented  macliine,  and  are  not  their  mechanical  equiva- 
lent, there  is  no  infringement.^ 

An  infringement  is  also  committed,  though,  besides  be- 
ing equivalent  to  the  thing  patented,  the  later  machine 
accomplishes  some  other  advantage  beyond  that  effected 
by  the  patent  machine.  The  new  machine  is  still  an  in- 
fringement, so  far  as  it  covers  the  object  of  the  patent. 
For  example :  The  defendant,  for  the  purpose  of  giving 
signals  by  telegraph,  uses  the  earth  for  effecting  a  return 
circuit ;  the  plaintiffs  having  a  patent  for  giving  signals 
by  means  of  electric  currents  transmitted  through  metallic 
currents.  The  machinery,  aside  from  the  return  circuit, 
used  by  the  defendant  is  the  same  as  that  covered  by  the 
plaintiff's  patent,  and  is  used  without  license.  The  de- 
fendant is  liable,  though  the  use  of  the  earth  for  effect- 
ing a  return  circuit  is  an  improvement  in  the  art  of 
telegraphing.^ 

Where,  however,  the  means  employed  in  the  later  ma- 
chine are  different,  not  merely  in  form,  but  in  substance, 
and  consist  in  combinations  differing  in  substance,  there  is 
no  infringement,  though  the  object  be  to  produce  the  same 
result.  For  example  :  The  defendant  constructs  a  ma- 
chine for  obtaining  a  current  of  air  between  the  grinding 
surfaces  of  mill-stones,  by  means  of  a  rotating  vane,  for 
effecting  which  the  plaintiff  also  has  a  machine,  protected 
by  patent.  The  plan  of  the  defendant  is  to  remove  from 
the  centre  of  both  stones  a  large  circular  portion,  and  in 
this  space,  opposite  the  opening  between  the  two  stones, 
to  place  a  fan,  by  the  rapid  rotation  of  which  a  centrifu- 

87  ;  Carter  v.  Baker,  1  Sawy.  512  ;  Elizabeth  v.  Pavement  Co.  97  U.  S. 
126,  137  ;  Morley  Machine  Co.  v.  Lancaster,  129  U.  S.  263. 

^  Cases  just  cited. 

"  Electric  Tel.  Co.  v.  Brett,  10  C.  B.  838. 


Chap.  XL  §  2.]    INFRINGEMENT  OF  PATENTS,  ETC.       229 

gal  motion  is  given  to  the  air,  driving  it  between  the 
stones.  The  plan  of  the  plaintiff  consists  of  a  portable 
ventilating  machine,  blowing  by  a  screw  vane,  which 
causes  a  current  of  air  parallel  to  the  axis  of  the  vane, 
being  attached  externally  to  the  eye  of  the  upper  mill- 
stone ;  and  the  screw  vane  being  thus  set  in  rapid  motion, 
the  air  is  forced  through  the  eye  into  the  centre  of  the 
stones,  and  so  finds  its  way  out  again.  The  defendant's 
machine  is  not  an  infringement  upon  the  plaintiff's.^ 

To  substitute  in  place  of  some  one  element  in  a  compo- 
sition of  patented  matter  a  mere  known  equivalent  is  an 
infringement,  because,  though  the  patentee  may  not  have 
expressly  mentioned  such  equivalent  in  his  claim,  he  is 
understood  to  have  included  it,  and  in  contemplation  of 
law  he  has  included  it.  However,  if  he  should  confine 
himself  to  the  specific  equivalents  mentioned  in  his  claim 
for  the  patent,  by  excluding  all  others,  the  case  will  be 
different,  and  there  will  be  no  infringement  in  the  use  of 
any  of  such  other  equivalents.^ 

"With  regard  to  patents  for  designs,  the  patent  acts  are 
intended  to  give  encouragement  to  the  decorative  arts. 
They  contemplate  not  so  much  practical  utility  as  appear- 
ance. It  is  the  appearance  itself  which  makes  the  article 
salable,  and  the  mode  in  which  these  appearances  are 
produced  has  little,  if  anything,  to  do  with  giving  in- 
creased salableness  to  the  article.  The  appearance,  then, 
furnishes  the  test  of  identity  of  design.^  Mere  difference 
of  lines  in  the  drawing  or  sketch,  a  greater  or  less  num- 
ber of  lines,  or  slight  variances  in  configuration,  if  insuffi- 
cient to  change  the  effect  upon  the  eye  of  the  ordinary 

1  Bovill  V.  Pimm,  11  Ex.  718. 

2  Byam  v.  Farr,  1  Curtis,  C.  C.  260  ;  Woodward  v.  Morrison, 
Holmes,  124,  131  ;  Tyler  v.  Boston,  7  Wall.  327. 

3  Gorham  i-.  White,  14  Wall.  511,  528. 


230  LAW  OF  TORTS.  [Part  II. 

observer,  will  not  destroy  the  substantial  identity.  An 
engraving  which  has  many  lines  may  present  to  the  ordi- 
nary eye  the  same  picture,  and  to  the  mind  the  same  idea, 
as  another  with  fewer  lines.  If,  then,  there  be  identity  of 
design  (not  to  an  expert,  but)  to  the  ordinary  observer, 
there  is  an  infringement  upon  the  patented  design.  For 
example  :  The  defendant  vends  a  carpet  containing  fig- 
ures of  flowers  arranged  in  wreaths  different  in  fact, 
upon  close  observation,  from  the  plaintiff's  patented  de- 
sign for  wreaths  of  flowers  upon  carpets  ;  the  flowers  on 
the  defendant's  carpet  being  fewer  in  number  than  those 
on  the  plaintiff's,  and  the  wreaths  being  placed  at  some- 
what wider  distances.  But  this  difference  would  not  be 
detected  except  upon  a  close  comparison.  The  defendant 
is  liable  to  the  plaintiff  in  damages.^ 

Under  the  statute,  the  mere  making,  except  for  experi- 
ment, without  the  sale  or  use  of  the  articles  or  object 
patented,  is  an  infringement  of  the  rights  of  the  patentee  ; 
and  it  follows  that  such  an  act  may  be  treated  as  a  ground 
of  liability,  though  no  damage  be  sustained  by  the  pat- 
entee. He  will  be  entitled  to  recover  nominal  damages 
at  least ;  '^  and  perhaps  substantial  damages  should  the  act 
be  repeated.^  It  is  equally  a  ground  of  liability  to  use  an 
article  which  is  an  infringement  of  a  patent,  though  the 
party  using  it  did  not  make  it ;  and  the  same  is  true  of  the 
sale  of  such  an  article.  Each  of  these  acts  is  an  invasion 
of  the  patentee's  right :  and  the  party  doing  the  act  is  lia- 
ble, however  innocent  of  any  intention  to  injure  the  true 
patentee,  or  even  of  knowledge  of  the  existence  of  the 
patent. ■* 

1  Gorham  Co.  v.  White,  14  Wall.  511. 

2  Whittemore  v.  Cutter,  1  Gal.  429. 

3  Compare  the  rule  in  trespass  to  land,  ante,  p.  192,  note. 

4  Parker  v.  Haworth,  4  McLean,   370,   373 ;  Bate  Refrigerator  Co. 
V.  Gillett,  31  Fed.  Eep.  809,  815. 


Chap.  XI.  §  2.]     INFRINGEMENT  OF  PATENTS,  ETC.       231 

Any  one  may,  without  license,  make  a  patented  article 
for  mere  experiment,  or  for  the  purpose  of  ascertain- 
mg  the  sufficiency  of  the  thing  to  produce  tlie  effects 
claimed  for  it,  or  perhaps  when  it  is  made  for  mere 
amusement,  or  as  a  model. ^  But  it  must  not  be  exposed 
for  sale,  nor  must  it  have  been  made  for  the  purpose 
of  pecuniary  profit,  though  experiment  was  also  part  of 
the  purpose.^ 

The  unauthorized  sale  of  a  patented  machine,  to  consti- 
tute an  infringement,  must  be  a  sale,  not  of  the  materials 
of  a  machine,  either  separate  or  combined,  but  of  a  com- 
plete machine,  with  the  right,  expressed  or  implied,  of 
using  the  same  in  the  manner  secured  by  the  patent.  It 
must  be  a  tortious  sale,  it  has  been  said,  not  for  the  pur- 
pose merely  of  depriving  the  owner  of  the  materials,  but 
of  the  use  and  benefit  of  his  patent,  —  a  point,  however, 
of  some  doubt,  as  has  already  been  observed  The  sale  of 
the  materials  merely,  cannot,  it  is  clear,  amount  to  an 
infringement.  For  example  :  The  defendant,  a  deputy 
sheriff,  havhig  an  execution  against  the  plaintiffs,  levies 
upon  and  sells  the  materials  of  three  patented  machines, 
of  which  the  plaintiffs  are  owners,  the  materials  being  at 
the  time  complete  and  fit  for  operation  as  machines.  The 
purchaser  has  not  put  any  of  the  machines  into  opera- 
tion ;  nor  is  the  sale  made  witli  intent  tliat  he  should  do 
so.     This  is  not  a  breach  of  duty  to  the  plaintiffs.'* 

The  sale  or  use  of  the  product  of  a  patented  machine 
is  no  violation  of  the  exclusive  right  to  use,  construct,  or 
sell  the  machine  itself :  and  the  patent  for  a  discovery  of 

1  Beedle  v.  Bennett,  122  U.  S.  71,  77  ;  Elizabeth  v.  Pavement  Co. 
97  U.  S.  126,  134  ;  Frearson  v.  Loe,  9  Ch.  D.  48.  See  Whittemore  v. 
Cutter,  1  Gal.  429  ;  Sawin  v.  Guild,  id.  485  ;  Jones  v,  Pearce,  "Webs. 
Pat.  Cas.  125. 

2  Smith  Mannf.  Co.  v.  Sprac^ue,  123  U.  S    249,  2^6. 

3  Sawin  v.  Guild,  1  Gal.  485. 


232  LAW   OF   TORTS.  [Part  II. 

a  new  and  improved  process,  by  which  any  product  or 
manufacture  before  known  in  commerce  may  be  made  in  a 
better  and  cheaper  manner,  grants  nothing  but  the  exclu- 
sive right  to  use  the  process.  Where  a  known  manufac- 
ture or  product  is  in  the  market,  purchasers  are  not  bound 
to  inquire  whether  it  was  made  on  a  patented  macliiue  or  by 
a  patented  process. ■*  But,  if  the  patentee  be  the  inventor 
or  discoverer  of  a  new  manufacture  or  composition  of  mat- 
ter not  known  or  used  by  others  before  his  discovery  or 
invention,  his  franchise  or  right  to  use  and  vend  to  others 
to  be  used  is  the  new  composition  or  substance  itself. 
The  product  and  the  process,  in  such  a  case,  constitute 
one  discovery,  the  exclusive  right  to  make,  use,  or  vend 
which  is  secured  to  the  patentee.  For  example  :  The  de- 
fendants, a  railroad  company,  use,  without  license  of  the 
plaintiff,  a  certain  article  called  vulcanized  India-rubber 
in  their  car-springs,  for  the  manufacture  of  which  sub- 
stance the  plaintiff  has  a  valid  patent ;  his  specification, 
though  describing  primarily  a  process,  still  showing  that 
the  purpose  and  merit  of  the  process  were  the  production 
of  a  valuable  fabric.  The  plaintiff  has  a  patent  in  the 
article  itself,  and  the  act  of  the  defendants  is  a  breach  of 
duty  to  him.^ 

Finally,  the  Revised  Statutes  of  the  United  States  pro- 
vide that  every  person  who,  in  any  manner,  marks  upon 
any  thing  made,  used,  or  sold  by  him  for  which  he  has  not 
obtained  a  patent,  the  name  or  any  imitation  of  the  name 
of  any  person  who  has  obtained  a  patent  tlierefor,  with- 
out the  consent  of  such  patentee,  or  his  assigns  or  legal 
representatives  ;  or  who,  in  any  manner,  marks  upon  or 
affixes  to  any  such  patented  article  the  word  '  patent '  or 
'  patentee,'  or  the  words  '  letters-patent,'  or  any  word  of 

1  See  ante,  p.  224. 

2  Goodyear  v.  Eailroad,  2  Wall.  C.  C.  356. 


Chap.  XL  §  3  ]     INFRINGEMENT  OF  PATENTS,  ETC.        233 

like  import,  with  intent  to  imitate  or  counterfeit  tlie  mark 
or  device  of  the  patentee,  without  having  the  license  or 
consent  of  such  patentee  or  his  assigns  or  legal  repre- 
sentatives ;  or  who,  in  any  manner,  marks  upon  or  affixes 
to  any  unpatented  article  the  word  '  patent,'  or  any  word 
importing  that  tlie  same  is  patented,  for  the  purpose  of 
deceiving  the  public,  shall  be  liable  for  every  such 
offence,  to  a  penalty  of  not  less  than  one  hundred  dollars, 
with  costs  ;  one-half  of  said  penalty  to  the  person  who 
shall  sue  for  the  same,  and  the  other  to  the  use  of  the 
United  States,  to  be  recovered  by  suit  in  any  district 
court  of  the  United  States  within  whose  jurisdiction  such 
offence  may  have  been  committed.^ 

§  3.     Of  Trade  Marks. 

The  law  relating  to  trade  marks  has  been  changing  its 
point  of  view,  if  not  its  grounds,  in  recent  times,  and  be- 
coming, as  has  been  observed  in  another  place,'^  assimi- 
lated to  the  law  of  property.  The  old  mode  of  suing  for 
deceit  is  falling  into  disuse  as  a  remedy  for  infringing  a 
trade  mark,  in  the  light  of  the  better  remedy  afforded  by 
equitable  proceedings.  But  it  is  not  yet  clear  that  the 
law  has  advanced  or  will  advance  to  the  point  of  assimi- 
lating the  law  of  trade  marks  so  far  with  the  law  of 
property  (as  e.g.  the  law  of  patents)  as  to  make  it  safe 
to  say  that,  for  the  purpose  of  recovering  damages,  the 
old  authorities,  which  make  the  action  virtually  an  action 
for  deceit,  are  no  longer  law. 

The  subject,  with  this  suggestion,  must  then  be  dropped 
in  this  connection  ;  for  while  an  ample  remedy  is  provided 
upon  the  footing  of  a  property  right  in  the  trade  mark 
where  damages  are  not  sought,  it  is  to  be  borne  in  mind 
that   tliis  book  is  a  treatise  relating  to  actions  for  dam- 

1  Rev.  Sts.  §  4901.  2  Ante,  p.  50,  note- 


234  LAW  OF   TORTS.  [Part  II. 

ages.^  In  a  word,  an  injunction,  or  nominal  damages, 
may  be  had  in  respect  of  the  infringement  of  a  trade 
mark  right,  without  further  requirement ;  but  it  is  not 
clear  whether  substantial  damages  can  be  obtained  with- 
out proof  of  fraud  as  interpreted  by  the  courts  in  the 
law  of  deceit. 

§  4.     Of  Copyrights. 

The  Revised  Statutes  of  the  United  States  grant  to  any 
citizen  of  the  United  States  or  resident  therein,  who 
shall  be  the  author,  inventor,  designer,  or  proprietor  of 
any  book,  map,  chart,  dramatic  or  musical  composition, 
engraviug,  cut,  print,  or  photograph,^  or  negative  thereof, 
or  of  a  painting,'^  drawing,  chromo,  statue,  statuary,  and 
of  models  or  designs  intended  to  be  perfected  as  works  of 
the  fine  arts,  and  the  executors,  administrators,  or  assigns 
of  any  such  person,  who  complies  with  certain  preliminary 
requirements,  the  sole  liberty  of  printing,  reprinting,  pub- 
lishing, completing,  copying,  executing,  finishing,  and 
vending  the  same  ;  and,  in  the  ease  of  a  dramatic  com- 
position, of  publicly  performing  or  representing  it,*  or 
causing  it  to  be  performed  or  represented  by  others  ;  and 
to  authors  the  privilege  of  reserving  the  right  to  drama- 
tize or  to  translate  theii-  own  works. ^ 

1  See  Cooley,  Torts,  423-430,  2d  ed.  The  authority  of  Congress 
over  trade  marks  is  limited.  Trade  Mark  Cases,  100  U.  S.  82.  Not 
so  of  the  State  legislatures. 

^  See  Burrow  Lithographic  Co.  v.  Sarony,  111  U.  S.  53,  showing  that 
the  photograph  should  represent  an  original  conception. 

8  Parton  v.  Prang,  3  Clitf.  587. 

4  See  The  lolanthe  Case,  15  Fed.  Rep.  439  ;  The  Mikado  Case,  25 
Fed.  Rep.  183  ;  Tomptins  v.  Halleck,  133  Mass.  32  (on  hearing  and 
committing  to  memory  a  play,  then  writing  it  out  and  presenting  it ; 
this  was  held  an  infringement,  overruling  Keene  v.  Kimball,  16  Gray, 
545). 

6  Rev.  Sts.  §  4952. 


Chap.  XI.  §  4.]     INFRINGEMENT  OF  PATENTS,  ETC.        235 

The  copyright  is  to  be  good  for  twenty-eight  years, 
with  the  right  of  renewal  for  fourteen  years  more.^  And 
any  person  who,  without  consent  of  the  owner  of  the 
copyright,  obtained  in  writing  signed  by  two  or  more  wit' 
nesses,  shall  print,  publish,  or  import  any  book,  or  know- 
ing the  same  to  be  so  printed,  published,  or  imported, 
shall  sell  or  expose  to  sale  any  copy  of  such  book,  shall 
forfeit  every  copy  thereof,  and  be  liable  in  damages  for 
the  act.^ 

To  the  author  of  copyrighted  matter  tlius  belongs  the 
exclusive  right  to  take  all  the  profits  of  publication  which 
the  sale  of  the  copyrighted  matter  may  produce.  And 
the  author's  exclusive  right  extends  to  the  whole  copy, 
and,  in  a  sense,  to  every  part  of  it.  It  follows  that  an 
infringement  of  a  man's  copyright  may  be  committed  (1) 
by  reprinting  the  whole  copy,  verbatim  ;  (2)  by  reprint- 
ing, verbatim,  a  part  of  it ;  (3)  by  imitating  the  whole  or 
a  part,  or  by  reproducing  the  whole  or  a  part  with  color- 
able alterations  or  disguises,  intended  to  give  to  it  the 
character  of  a  new  work ;  (4)  by  reproducing  the  whole 
or  a  part  under  a  colorable  abridgment,  not  fairly  con- 
stituting a  new  work. 

With  regard  to  each  of  these  forms  of  infringement,  it 
is  to  be  observed  that  the  question  of  intention  does  not 
enter  into  the  determination  of  the  question  of  piracy.^ 
The  question  is  oue  of  property,  analogous  to  cases  of 
trespass  or  conversion ;  the  exclusive  privilege  which  the 
law  secures  to  authors  may  be  equally  violated  whether 

1  Id.  §§4953,  4954.. 

2  U.  S.  Rev.  Sts.  §  4964.  The  author  has  property  at  common  law 
in  his  manuscript.  Wheaton  v.  Peters,  8  Peters,  591 ,  657.  But  co2)y- 
right  is  a  matter  of  statute  purely.  Id.  ;  Albert  v.  Strange,  1  Macn. 
&  G.  25.  The  author  of  class-room  lectures  will  be  protected  at 
common  law  against  unauthorized  publication.  Caird  v.  Sime,  1 2  App, 
Cas.  326. 

3  Clement  v.  Maddick,  1  Giff.  98. 


236  LAW   OF  TORTS.  [Part  IL 

the  work  complained  of  has  been  published  with  or  with- 
out the  animus  f arandi.  The  fact  that  a  party  has  hon- 
estly mistaken  the  extent  of  his  right  to  avail  himself  of 
the  works  of  others  will  not  excuse  him  from  liability.^ 

Piracies  of  the  nature  of  those  mentioned  under  the  first 
head  are  seldom  committed,  and  they  may  be  dismissed 
with  the  observation  that  it  matters  not  how  much  origi- 
nal and  valuable  matter  may  be  incorporated  with  the 
reprint  of  the  copyrighted  matter.  The  act  is  still  an  in- 
fringement, though  the  public  might  derive  great  benefit 
from  the  superior  value  of  the  work. 

Piracies  of  the  second  class  are  more  difficult  to  deal 
with.  The  quantity  of  matter  cannot  be  a  true  criterion 
of  the  commission  of  an  infringement,'  since  only  a  small 
portion  of  a  work  may  be  pirated,  and  this  the  most 
important  part  of  the  work,  or  a  very  important  part  of 
it.  For  example  :  The  defendant  makes  use,  in  a  pub- 
lished volume  of  judicial  decisions,  of  the  head-notes,  or 
marginal  notes,  of  the  plaintiff  in  a  series  of  volumes 
of  reports,  of  which  the  plaintiff  owns  the  copyright. 
This  is  an  infringement  of  the  plaintiff's  rights,  for  which 
the  defendant  is  liable  ;  though  such  notes  constitute  but 
a  small  part  of  the  plaintiff's  work.^ 

It  may  be  doubtful  if  any  part  of  the  work  of  another 
may  be  taken  auimo  furandi.*  How  much  may  be  hon- 
estly taken,  that  is,  taken  without  any  purpose  of  sup- 
planting the  copyright  work,  is  the  difficult  question.  It 
is  clear  that,  if  so  much  be  taken  as  to  diminish  sensibly 

1  Emerson  v.  Davies,  3  Story,  768. 

2  Bramwell  v.  Halcomb,  3  Mylne  &  C.  737  ;  Bradbury  v.  Hotten, 
L.  R.  8  Ex.  1. 

3  See  Wheaton  v.  Peters,  8  Peters,  591  ;  Saunders  v.  Smith,  3 
Mylne  &  C.  711  ;  Sweet  v.  Sweet,  1  Jur.  212  ;  Sweet  v.  Penning,  16 
C.  B.  459. 

*  Mr.  Godson  thinks  it  cannot.  Patents  and  Copyrights,  216.  Mr. 
Curti.s,  contra.     Copyrights,  251,  note. 


Chap.  XI.  §  4.]     INFRINGEMENT  OE  PATENTS,  ETC.        237 

the  value  of  the  original,  an  infringement  has  been  com- 
mitted.^ It  is  not  only  quantity,  but  value  also,  that 
must  be  taken  into  the  consideration.^ 

In  deciding  questions  of  this  sort,  it  has  been  observed 
that  the  nature  and  objects  of  the  selections  made  must 
be  taken  into  account,  the  quantity  and  value  of  the  ma- 
terials used,  and  the  extent  to  which  the  use  may  preju- 
dice the  sale  or  diminish  the  profits,  or  supersede  the  objects 
of  the  original  work.^  Many  mixed  ingredients  enter  into 
the  discussion  of  such  questions.  In  some  cases,  a  con- 
siderable portion  of  the  materials  of  the  original  work  may 
be  fused  into  another  work,  so  as  to  be  distinguishable 
in  the  mass  of  the  latter ;  but  yet  the  latter,  having  a 
distinct  purpose  from  the  copyrighted  book,  may  not  be 
an  infringement.  In  other  cases  the  same  materials  may 
be  used  as  a  distinct  feature  of  excellence,  and  constitute 
the  chief  value  of  the  new  work,  and  then  the  latter  will 
be  an  infringement.*  Be  the  quantity,  then,  large  or 
small,  if  the  part  extracted  furnish  a  substitute  for  the 
work  from  which  it  is  taken,  so  as  to  work  an  appreciable 
injury,  there  is  an  actionable  violation  of  copyright.^ 

A  person  is  entitled  to  make  a  reasonable  amount  of 
quotation  from  a  copyrighted  production  by  way  of  re- 
view or  criticism  ;  but,  under  the  pretence  of  review,  no 
one  has  the  right  to  publish  a  material  part  of  the  author's 
work  ;  ^  that  is,  such  a  part  as  might  have  a  sensible  effect 
in  superseding  the  original,^  —  not  perhaps  as  a  whole, 
but  quoad  hoc.^ 

1  Bramwell  v.  Halcomb,  3  Mylne  &  C.  737  ;  Saunders  v.  Smith,  Id. 
711.  2  1(1. 

3  Folsom  V.  Marsh,  2  Story,  100. 
*  Id.  100. 

6  Curtis,  Copyright,  245 ;  Folsom  v.  Marsh,  2  Story,  100. 
6  See  Wilkins  v.  Aiken,  17  Ves.  422,  424. 
'  Roworth  V.  Wilkes,  1  Campb.  94.  ^  Curtis,  246.  noteu 


238  LAW   OF   TORTS.  [P^uix  IL 

In  regard  to  imitations  of  the  whole  or  part  of  a  copy- 
righted work,  the  difficulty  of  determining  the  question  of 
piracy  is  scarcely  less.  There  may  be  likeness  without 
copying ;  and,  though  the  copyrighted  work  may  have 
suggested  the  new  one,  the  imitation  may  not  be  close 
enough  to  amount  to  infringement.  The  question, 
however,  is,  whether  the  variation  be  substantial  or 
merely  colorable.^  For  example  :  The  defendant  is  al- 
leged to  have  infringed  the  plaintiff's  copyright  in  an 
Arithmetic  by  imitating  its  plan  and  contents.  The  test 
of  the  defendant's  liabihty  is  whether  he  has  in  fact 
used  the  plan,  arrangements,  and  illustrations  of  the 
plaintiff  as  the  model  of  hi^  own  work,  with  colorable 
alterations  and  variations,  only  to  disguise  the  use  there- 
of, or  whether  the  defendant's  work  is  the  result  of  his 
own  labor,  skill,  and  use  of  common  materials  and  com- 
mon sources  of  knowledge,  open  to  all  men,  the  resem- 
blances being  accidental,  or  arising  from  the  nature  of  the 
work  ;  —  whether,  in  short,  the  defendant's  work  be  quoad 
hoc  a  servile  or  evasive  imitation  of  the  plaintiff's  work, 
or  a  bona  fide  original  composition  from  other  common  or 
original  sources."^. 

In  cases  of  this  kind,  it  is  not  enough  to  establish  a  vio- 
lation of  duty  that  some  parts  or  pages  of  the  later  work 
bear  resemblances  in  methods,  details,  and  illustrations  to 
the  copyrighted  work.  It  must  further  appear  that  the 
resemblances  In  those  parts  or  pages  are  so  close,  so  full, 
so  uniform,  and  so  striking,  as  fairly  to  lead  to  the  con- 
clusion that  the  one  is  a  substantial  copy  of  the  other,  or 
is  mainly  borrowed  from  it.^ 

It  is  to  be  observed,  therefore,  that  it  does  not  follow 
that  because  the  same  sources  of  information  are  open  to 

^  Trusler  v.  Murray,  1  East,  363,  note  ;  Emerson  v.  Davies,  3  Story, 
768,  793. 

2  Emerson  v.  Davies,  supra.  ^  Id. 


CiiAP.  XL  §  4.]     INFRINGEMENT  OF  PATENTS,  ETC.        239 

all  persons,  and  by  the  exercise  of  their  own  skill,  talent, 
or  industry  they  could,  from  all  of  these  sources,  have 
produced  a  similar  work,  one  party  may,  at  second  hand, 
without  any  exercise  of  skill,  talent,  or  industry,  borrow 
from  another  all  the  materials  which  have  been  accumu- 
lated and  combined  by  him.  For  example  :  The  defend- 
ant copies  a  map  of  a  town  from  tlie  plaintiff's  copyrighted 
map,  the  latter  being  made  by  actual  surveys  of  the  re- 
gion. This  is  an  infringement  of  the  plaintiff's  copyright, 
though  the  means  used  by  the  plaintiff  for  making  his  map 
were  open  to  all  persons  alike. ^ 

The  next  case  is  that  of  abridgments  ;  the  rule  of  law  in 
England  as  to  which  is  said  to  be,  that  a  fair  abridgment, 
when  the  understanding  is  employed  in  retrenching  unne- 
cessary circumstances,  is  not  a  piracy  of  the  original  work. 
Such  an  abridgment  is  allowable  as  constituting  a  new 
woi-k.^ 

It  is  not  clear  what  the  American  law  upon  this  point 
is.  It  is  certain,  however,  that  to  justify  an  abridgment 
of  a  copyrighted  work,  the  case  must  be  one  of  a  bona  fide 
character,  and  not  a  mere  evasive  reproduction  of  the 
original,  by  the  omission  of  some  unimportant  parts.  It 
is  also  a  matter  for  consideration  whether  the  new  work 
will  prejudice  or  supersede  the  old,  whether  it  will  be 
adapted  to  the  same  class  of  readers,  and  often  other 
things  of  the  same  sort  must  be  weighed.  In  many 
cases,  the  question  may  turn  upon  a  consideration  not 
so  much  of  the  quantity  used  as  of  the  value  of  the 
selected  materials,^  as  has  been  observed  in  another 
connection. 

The  true  question  in  cases  of  this  kind,  indeed,  appears 
to  be  whether  there  has  been  a  legitimate  use  of  the  copy- 

1  See  Gray  v.  Paissell,  1  Story,  11,  18. 

2  Copinger,  Copyrights,  101. 

3  Gray  v.  Russell,  1  Story,  19. 


240  LAW   OF   TORTS.  [Part  II. 

right  publication,  in  the  fair  exercise  of  a  mental  opera- 
tion, deserving  the  name  of  a  new  work.  If  there  has 
been,  though  it  may  be  prejudicial  to  the  original  author, 
it  is  not  deemed  to  be  an  invasion  of  his  rights.  If  there 
has  not  been,  then  it  is  treated  as  a  mere  colorable  cur- 
tailment of  the  original  work,  and  an  evasion  of  the 
copyright.^ 

Digests  of  larger  works  fall  under  the  head  of  abridg- 
ments. Such  publications  are  in  their  nature  original. 
The  compiler  intends  to  make  a  new  use  of  them  not  in- 
tended by  the  original  author.  But  such  works  must  be 
real  digests,  and  not  mere  colorable  reproductions  of  the 
original,  in  whole  or  in  an  essential  part.  The  work  be- 
stowed upon  a  digest  must  be  something  more  than  the 
labor  of  the  pen  and  the  arrangement  of  extracts  ;  it  must 
be  mental  labor,  designed  to  produce  a  new  work,  the 
object  of  which  must  clearly  appear  to  be  consistent  with 
the  rights  of  the  author  of  the  original  work."^ 

It  is  not  an  infringement  of  a  copyright,  by  the  Ameri- 
can law,  to  translate,  without  license  of  the  author,  a 
copyrighted  work  into  a  foreign  language  ;  ^  unless  the 
author  has  reserved  the  right  of  translation.  And  this  is 
true  in  America,  though  the  author  has  himself  procured 
and  copyrighted  a  translation  of  his  work  into  the  same 
language  with  the  translation  complained  of.  For  exam- 
ple :  The  defendant  translates  into  German  a  book  enti- 
tled '  Uncle  Tom's  Cabin,'  and  publishes  his  translation 
here  ;  the  plaintiff,  the  author,  having  previously  procured 
her  work  to  be  translated  into  that  language,  and  having 

1  2  Story,  Equity,  §  939.  See  also  Story  v.  Holcombe,  4  McLean, 
306. 

2  See  the  remarks  of  Lord  Lyndhurst  in  D'Almaine  v.  Boosey,  1 
Younge  &  C.  288,  a  case  of  infringement  of  a  copyrighted  musical 
composition. 

8  Stowe  V.  Thomas,  2  WalL  C.  C  547 


CiiAP.  XI.  §  4]     INFRINGEMENT  OF  PATENTS,  ETC.       241 

procured  a  copyright  upon  her  translation.     The  defend- 
ant has  violated  no  duty  to  the  plaintiff.^ 

Finally,  the  Revised  Statutes  of  the  United  States  pro- 
vide that  every  person  who  shall  print  or  publish  any 
manuscript  whatever,  without  the  consent  of  the  author 
or  proprietor  first  obtained,  if  such  author  or  proprietor  is 
a  citizen  of  the  United  States,  or  resident  therein,  shall  be 
liable  to  the  author  or  proprietor  for  all  damages  occa- 
sioned by  such  injury.* 

1  Stowe  V.  Thomas,  snpra.     See  Shook  v.  Rankin,  6  Biss.  477. 
a  U.  S.  Eev.  Sts.  §  4967. 


CHAPTER   XII. 

VIOLATION  OF   RIGHTS   OF   SUPPORT. 

§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  to  for- 
bear to  remove,  to  B's  damage,  the  lateral  support  of  B's 
land,  while  it  lies  in  its  natural  condition,  or  while,  under 
title  by  grant  or  prescription,  it  lies  in  an  artificial  condi- 
tion ;  (2)  to  forbear  to  remove  negligently,  to  B's  damage, 
the  lateral  support  of  B's  land  with  the  superincumbent 
weight  of  buildings  or  materials  thereon,  adjacent  to  the 
boundary  ;  (3)  to  forbear  to  withdraw,  to  B's  damage,  the 
subjacent  support  of  his  premises. 

§  2.     Of  Lateral  Support. 

The  owner  of  land  has  a  right,  against  his  neighbor,  to 
what  is  termed  the  lateral  support  of  the  land.  This  right 
of  lateral  support  is  a  right  of  support  of  the  land  in  its 
natural  condition,  or,  in  case  of  grant  or  prescription,  in 
an  artificial  condition  ;  and  this  right  of  support  of  land 
in  its  natural  condition  is,  prima  facie,  a  right  analogous 
to  the  right  to  make  use  of  a  running  stream  or  of  the  air. 
It  is  not  in  the  nature  of  an  easement,  and  does  not  de- 
pend upon  prescription  or  grant.'  But  of  course  a  right 
to  remove  the  support  may  be  acquired  by  grant, ^  though 

1  Bonomi  v.  Backhouse,  El.,  B.  &  E.  622,  646  ;  s.  c.  9  H.  L.  Cas. 
503.     See  Darley  Colliery  Co.  v.  Mitchell,  11  App.  Cas.  127. 

2  Rowbotham  v.  Wilson,  8  H.  L.  Cas.  348. 


Chap.  XII.  §  2.]    VIOLATING  RIGHTS  OF  SUPTORT.         243 

not  by  custom  or  prescription,  because  tliat,  it  is  said, 
would  be  oppressive  and  unreasonable.^ 

This  right  of  support  of  the  land  surrounding  a  man's 
premises,  unlike  rights  of  property  in  general,  is  not  in- 
fringed, for  the  purposes  of  a  suit  for  tort,  unless  remov- 
ing the  soil  cause  damage  ;  ^  but  damage  being  caused  by 
the  removal  of  support,  a  right  of  action  arises.  For  ex- 
ample :  The  defendant,  owner  of  premises  adjoining  the 
premises  of  the  plaintiff,  which  are  located  upon  the  side 
of  a  declivity,  excavates  the  earth  of  his  land  so  closely 
to  the  boundary  between  his  own  and  the  plaintiff's  prop- 
erty as  to  cause  the  soil  of  the  plaintiff's  premises,  of  its 
own  natural  weight,  to  slide  away  into  the  pit.  This  is  a 
breach  of  duty  to  the  plaintiff,  for  which  the  defendant  is 
liable  in  damages.^ 

The  doctrine,  however,  goes  no  further  than  to  sustain 
a  right  of  action  for  the  sinking  of  land  in  its  natural  con- 
dition. The  action  cannot  be  maintained  if  the  sinking  be 
due  to  a  superincumbent  weight  placed  upon  the  plaintiff's 
premises,  unless  indeed  some  distinct  right  has  been  ac- 
quired against  the  adjoining  occupant.  P'or  example : 
The  defendant  digs  a  gravel  pit  in  his  premises  close  to 
the  line  between  his  own  and  the  plaintiff's  land.  Within 
two  feet  of  the  line,  on  the  plaintiff's  land,  stands  a  brick 
house,  erected  ten  years  before,  and  occupied  by  the 
plaintiff.     By  reason  of  the  defendant's  excavation,  the 

1  Hilton  V.  Granville,  5  Q.  B.  701  ;  Wakefield  v.  Buccleuch,  L.  R. 
4  Eq.  613.     . 

2  Bonomi  v.  Backhouse,  supra. 

»  Thurston  v.  Hancock,  12  Mass.  220  ;  s.  c.  L.  C.  Torts,  527.  See 
Gilmore  v.  Driscoll,  122  Mass.  199.  Some  doubt  was  cast  upon  this 
doctrine  in  a  dictum  in  Radcliff  y.  Brooklyn,  4  Comst.  19.5,  203,  on  the 
ground  that  it  might  interfere  in  cities  with  the  use  of  property.  But 
this  dictum  has  been  disregarded.  Farrand  v.  Marshall,  21  Barb.  409, 
414  ;  MeGuire  v.  Grant,  1  Dutch.  356,  367.  See  Foley  v.  Wyeth,  2 
Allen,  131. 


244  LAW  OF  TORTS.  [Part  II. 

premises  being  located  on  the  side  of  a  hill,  it  becomes 
necessary  for  the  plaintiff  to  vacate  his  house,  and  to  take 
it  down,  to  prevent  it  from  sliding  into  the  defendant's 
pit.  The  defendant  is  not  liable,  since  it  was  the  plain- 
tiff's own  folly  to  build  so  near  the  line.^ 

A  right  to  lateral  support  of  buildings  is  in  the  nature 
of  a  right  of  easement,  and  in  England  can  be  acquired 
either  by  grant  or  by  prescription.^  In  this  country  the 
right  cannot,  it  seems,  be  acquired  by  prescription.^  But 
even  in  England,  though  a  building  may  have  stood  upon 
the  plaintiff's  premises  for  the  period  of  prescription,  if 
its  walls  were  improperly  constructed,  so  as  for  this  cause 
to  give  way,  and  not  by  reason  of  the  excavation  alone, 
the  plaintiff  cannot  recover.*  And  the  same  would  be 
true,  if,  within  the  period  of  prescription,  a  new  story 
were  added  to  the  house,  whereby  the  pressure  was  so 
increased  as  to  cause  the  sinking.^ 

On  the  other  hand,  it  is  to  be  observed  that  the  mere 
fact  that  there  were  buildings,  recently  erected,  standing 
upon  the  border  of  the  owner's  land  when  it  sank,  will  not 
prevent  his  recovering  damages.  If  the  soil  sank,  not  on 
account  of  the  additional  weight,  but  on  account  of  the 
operations  in  the  adjoining  close  (though  they  were  care- 
fully conducted),  and  would  have  sunk  had  there  been  no 
buildings  upon  it,  it  is  held  in  England  that  the  person 
sustaining  the  damage  is  entitled  to  redress  to  the  extent 

1  Thurston  v.  Hancock,  supra;  Caledonian  Ry.  Co.  v.  Sprott,  2 
Macq.  449  ;  Partridge  v.  Scott,  3  M.  &  W.  220. 

2  Dalton  V.  Angus,  6  App.  Cas.  740  ;  infra,  p.  246. 

3  Gilmore  v.  DriscoU,  122  Mass.  199,  207  ;  Tunstall  v.  Christian,  80 
Va.  1.  Yet  it  has  been  common  in  this  country  to  speak  of  the  right 
as  arising  from  grant  or  prescription.  See  Gilmore  v,  Driscoil,  supra, 
and  cases  there  cited. 

*  Richart  v.  Scott,  7  Watts,  460  ;  Dodd  v.  Holme,  1  Ad.  &  E.  493. 
6  See  Murchie  v.  Black,  34  L.  J.  C.  P.  337. 


Chap.  XII.  §  2.]     VIOLATING  RIGHTS  OF  SUPPORT.        245 

of  his  loss.^  Clearly  if  the  operation  in  the  adjoining 
laud  were  conducted  with  a  negligeut  disregard  to  the 
rights  of  the  plaiutiff,  aud  the  effect  of  such  negligence 
were  the  fall  of  the  plaintiff's  building,  the  adjoining 
occupant  is  liable  therefor.^ 

But  in  the  absence  of  negligence  in  the  defendant,  if  the 
damage  to  the  plaintiff's  premises  would  have  been  slight 
and  inappreciable  had  there  been  no  superincumbent 
weight,  he  will  not  be  entitled  to  recover.  For  example  : 
The  defendant  digs  a  well  near  the  plaintiff's  land,  which 
causes  the  same  to  sink,  aud  a  building  erected  there 
within  twenty  years  falls.  If  the  building  had  not  been 
on  the  plaintiff's  land,  the  land  would  still  have  sunk,  but 
the  damage  to  the  plaintiff  would  have  been  inappreciable. 
This  is  no  breach  of  duty.^ 

The  result  therefore  is,  (1)  that  the  defendant  is  liable 
for  the  damages  suffered  by  his  neighbor  from  the  with- 
drawal of  the  lateral  support  when  that  act,  of  itself,  and 
without  the  fault  of  the  neighbor,  was  the  cause  of  the 
damage,  including  in  England,  but  not  in  this  country, 
damage  done  to  sound  buildings  built  twenty  years  or 
more  before ;  though  the  excavation  was  carefully  made. 
(2)  He  is  liable  for  all  the  damage  suffered  by  withdraw- 
ing the  support  when  he  was  guilty  of  negligence,  includ- 
ing in  the  damages  injuries  to  soundly  built  buildings 
however  recently  erected.     (3)  He  is  not  liable,  in  the 


1  Stroyan  v.  Knovvles,  6  H.  &  N.  454.  But  some  courts  hold  tliat 
the  value  of  the  buildings  could  not  be  recovered,  unless  there  veas 
negligence  ;  assuming  that  no  right  had  been  acquired  by  grant  (or  by 
prescription,  if  a  right  can  so  be  acquired).  Gilmore  v.  Driscoll,  122 
Mass.  199,  206,  207. 

2  See  Gilmore  v.  Driscoll,  supra ;  Charless  v.  Rankin,  22  Mo.  566, 
574  ;  Schrieve  v.  Stokes,  8  B.  Mon.  453,  459  ;  Dodd  v.  Holme,  1  Ad. 
&  E.  493  ;  Bibley  v.  Carter,  4  H.  &  N.  153. 

3  Smith  V.  Thackerah,  L.  R.  1  C.  P.  564. 


246  LAW  OF  TORTS  [Part  II 

absence  of  grant  or  prescription,  if  the  subsidence  was 
caused  by  the  weight  of  buildings,  or  by  the  defective 
condition  of  the  same. 

The  right  of  kxteral  support  to  contiguous  buildings 
may  be  acquired  by  grant  or  reservation,  or  in  England, 
but  not  in  this  country,  by  prescription.^  Where  build- 
ings have  been  erected  in  contiguity  by  the  same  owner, 
and  therefore  require  mutual  support,  there  is,  eitlier  by  a 
presumed  grant  or  by  a  presumed  reservation,  a  right  to 
such  mutual  support  in  favor  of  the  original  owner  on  a 
sale  by  him  of  any  of  the  buildings.  As  against  himself, 
on  the  other  hand,  there  is  a  presumed  grant  of  the  right 
of  support  in  favor  of  the  purchaser,  which  right  takes 
effect  at  once.  And  the  reservation  in  the  original  owner, 
after  one  sale,  of  the  right  of  support  for  the  adjoining 
building,  will  enable  a  second  purchaser,  on  buying  this 
adjoining  house,  to  claim  against  his  neighbor  the  same 
right  of  support ;  since  by  the  purchase  he  acquires  all  of 
his  vendor's  rights.  It  follows  also  that  the  same  mutual 
dependency  continues  after  subsequent  alienations  by  the 
purchasers  from  the  original  owner,  and  this  regardless  of 
the  question  of  time.  For  example  :  The  defendant  con- 
structs a  drain  under  his  house  to  connect  with  a  public 
sewer,  and  thereby  weakens  the  support  of  the  wall  sepa- 
rating the  defendant's  house  from  the  plaintiff's,  to  the 
injury  of  the  latter's  house.  The  two  houses  originally 
belonged  to  the  same  person,  who  had  demised  them  both 
for  ninety-nine  years  to  W.  The  latter  mortgages  both 
to  B,  who  assigns  the  mortgage  to  H,  and  H  conveys  (un- 
der a  power)  one  of  the  houses  to  the  plaintiff  in  July,  and 
the  other  to  the  defendant  in  September  following.     The 


1  Dalton  V.  Angus,  supra  ;  Lemaitro  v.  Davis,  19  Ch.  D.  281.  Not 
by  prescription,  Tunstall  v.  Christiau,  80  Va.  1.  See  also  Gilniore  v. 
Drisooll,  122  Mass.  199,  207. 


Chap.  XII.  §  2.]     VIOLATING  RIGHTS  OF  SUPPORT.        247 

defendant's  act  in  weakening  the  support  of  the  plaintiff's 
house  is  a  breacli  of  duty,  and  the  defendant  is  liable.^ 

But  the  right  to  such  support  of  buildings  is  not  a  natu- 
ral right ;  and  where  the  adjoining  buildings  were  erected 
by  different  owners  the  right  of  support  can  be  acquired 
in  favor  of  either  of  the  original  owners  (and  their  suc- 
cessors in  estate)  only  by  grant  of  the  other  or  reserva- 
tion, or  in  England  by  prescription.  For  example  :  The 
defendants  pull  down  a  house  adjoining  the  plaintiff's, 
without  shoring  up  the  latter,  and  thereby  cause  damage 
to  the  plaintiff's  property.  The  houses  were  built  about 
the  same  time,  but  by  different  owners  of  the  soil ;  and 
there  is  no  title  to  support  either  by  grant  or  by  prescrip- 
tion, nor  has  the  pulling  down  been  negligently  done.  The 
defendants  are  not  liable  ;  at  least  if  the  plaintiff  has  suf- 
ficient notice  of  the  purpose  of  the  defendants  to  enable 
him  to  take  the  proper  precautions  against  the  damage. - 

If  there  be  an  intervening  house  or  store  in  the  block, 
between  the  premises  of  the  plaintiff  and  those  of  the  de- 
fendant, the  pulling  down  of  the  latter's  building  cannot 
be  a  breach  of  duty  to  the  former  in  the  absence  of  some 
special  engagement  between  the  parties,  especially  if  the 
plaintiff's  building  was  already  in  an  unsafe  condition.^ 

There  appears  to  be  no  obligation  resting  upon  the 
owner  of  a  house  towards  his  neighbor  in  the  adjoining 
tenement  to  keep  his  house  in  repair  (further  than  to  pre- 
vent the  same  from  becoming  a  nuisance)  *  in  a  lasting 
and  substantial  manner.  The  only  duty  is  deemed  to  be 
to  keep  it  in  such  a  state  that  his  neighbor  may  not  be  in- 
jured by  its  fall.     The  house  may,  therefore,  be  in  a  ruiu- 

1  Richards  v.  Rose,  9  Ex.  218. 

2  Peyton  v.  London,  9  B.  &  C.  725. 

3  Solomon  v.  Vintners'  Co.,  4  H.  &  N.  585. 

*  Comp.  Giles  v.  Walker,  24  Q.  B.  D.  656,  as  to  care  of  premises  on 
which  thistles  grow. 


2J:8  LAW   OF  TORTS.  [rARx  IL 

ous  condition,  provided  it  be  shored  up  sufficiently,  or 
the  liouse  may  be  demolished  altogether,  if  this  can  be 
done  without  injury  to  the  adjoining  house. ^ 

If  either  of  the  cotenants  of  a  party- wall  "^  should  wish 
to  improve  his  premises  before  the  wall  has  become  ruin- 
ous, or  incapable  of  further  answering  the  purposes  for 
which  it  was  built,  he  may  underpin  the  foundation,  sink 
it  deeper,  and  increase,  within  the  limits  of  his  own  land, 
the  thickness,  length,  or  height  of  the  wall,  if  he  can  do 
so  without  injury  to  the  building  upon  the  adjoining  close. 
And  to  avoid  such  injury,  he  may  shore  up  and  support 
the  original  wall  for  a  reasonable  time,  in  order  to  exca- 
vate and  place  a  new  underpinning  beneath  it ;  or  he  may 
pull  the  wall  down  for  the  purpose  of  building  a  new  one.^ 
To  pull  the  wall  down  without  intending  to  replace  it 
would  be  evidence  of  an  ouster,  for  which  an  action  could 
be  maintained.* 

It  is  held  that  one  of  the  cotenants  cannot,  without  con- 
sent of  the  other,  interfere  with  the  wall  unless  he  can  do 
so  without  injury  to  the  adjoining  building.  No  degree 
of  care  or  diligence  in  the  performance  of  the  work  will 
relieve  him  from  liability,  if  injury  be  done  to  the  adjoin- 
ing building  by  making  the  improvements.  For  example  : 
The  defendant,  co-owner  with  the  plaintiff  of  a  party- 
wall  between  their  premises,  digs  down  his  cellar  about 
eighteen  inches,  underpinning  the  party-wall,  and  lowers 
the  floor  of  his  first  story  the  same  distance.  In  conse- 
quence of  these  operations,  the  division  wall  settles  sev- 
eral inches,  carrying  down  the  plaintiff's  floors,  and  crack- 
ing the  front  and  rear  walls  of  his  (the  plaintiff's)  building. 

1  Chauntler  v.  Robinson,  4  Ex.  163,  170. 

'^  For  the  different  kinds  of  party-walls,  see  Watson  v.  Gray,  14  Ch. 
D.  192  ;  Weston  V.  Arnold,  L.  R.  8  Ch.  1084. 
3  Standard  Bank  v.  Stokes,  9  Ch.  D.  68. 
*  Jones  V.  Read,  10  Ir.  R.  C.  L.  315,  Ex.  Ch. 


Chap.  XII.  §  2.]    VIOLATING  EIGHTS  OF  SUPPORT.        249 

The  defendant  is  liable  to  the  plaintiff  for  the  damage  thus 
caused,  though  the  said  operation  were  carried  on  pru- 
dently and  carefully.^ 

It  follows  that,  if  a  party-wall  rest  upon  an  arch,  the 
legs  of  which  stand  within  the  land  of  the  respective 
owners,  neither  can  remove  one  of  the  legs  to  the  detri- 
ment of  his  neighbor,  without  his  consent.^  On  the  other 
hand,  either  may  run  up  the  wall  to  any  height,  provided 
no  damage  be  thereby  done  to  the  other. ^ 

The  existence  of  a  right  to  fix  a  beam  or  timber  into 
the  wall  of  a  neighbor's  house  depends  upon  the  situation 
of  the  wall.  If  it  stand  wholly  upon  the  laud  of  the 
owner,  it  is  clear  that  no  such  right  can  exist  except  by 
grant  or  possibly  by  prescription.  Any  attempt  by  the 
adjoining  owner  to  fix  a  timber  in  the  wall,  without  con- 
sent given,  would  be  a  trespass,  for  which  an  action  would 
lie ;  or  (probably)  it  could  be  treated  as  a  nuisance  and 
abated  accordingly.  And  a  wall  thus  situated  (the  adjoin- 
ing owner  having  acquired  no  right  to  the  enjoyment  of 
it)  may  be  altered  or  removed  at  pleasure,  provided  no 
damage  be  thereby  done  to  the  adjoining  premises. 

If,  however,  the  wall  be  a  party-wall  owned  in  severalty 
to  the  centre  thereof,  or  in  common,  by  the  adjoining 
owners,  the  case  will  of  course  be  different ;  and  each  will 
be  entitled  to  fix  timbers  Into  it,  in  a  prudent  manner, 
doing  no  damage  to  the  wall  or  prejudice  to  the  other 
owner.* 

Where  the  wall  is  owned  in  severalty  to  the  centre,  it  is 
clear  that  neither  owner  could  extend  his  timbers  beyond 

1  Eno  V.  Del  Vecchio,  6  Duer,  17,  27  ;  s.  c.  4  Duer,  58. 

2  Partridge  v.  Gilbert,  15  N.  Y.  601  ;  Bowling  v.  Hennings,  20  Md. 
179. 

3  Matts  V.  Hawkins,  5  Taunt.  20  ;  Brooks  v.  Curtis,  50  N.  Y.  639, 
644.     See  Dauenhauer  v.  Devine,  51  Texas,  480. 

4  See  L.  C.  Torts,  555. 


250  LAW  OF   TORTS.  [Part  H. 

the  centre  of  the  wall.  To  pass  the  line  of  division  with- 
out permission  would  be  as  much  a  trespass  as  to  make 
an  entry  upon  the  soil  without  permission. 

On  the  other  hand,  the  case  would  clearly  be  different  if 
the  wall  were  owned  in  common  by  the  adjoining  proprie- 
tors, since,  as  has  elsewhere  been  observed,^  each  of  the 
tenants  in  common  is  seised  of  the  whole  common  prop- 
erty. And  it  follows  that  such  a  wall  may  also  be  taken 
down  by  either  owner,  for  the  purpose  of  rebuilding,  if 
necessary.^ 

§  3.    Of  Subjacent  Support. 

While  ordinarily  a  man's  title  to  land  includes  the  un- 
derlying Soil  to  an  indefinite  extent  towards  the  centre  of 
the  earth,  it  is  settled  law  that  there  may  be  two  freeholds 
in  the  same  body  of  earth  measured  superficially  and  per- 
pendicularly down  towards  the  earth's  centre  ;  to  wit,  a 
freehold  in  the  surface  soil  and  enough  lying  beneath  it  to 
support  it,  and  a  freehold  in  underlying  strata,  with  a 
right  of  access  to  the  same,  to  work  therein  and  remove 
the  contents.^ 

This  right  to  the  subjacent  strata,  however,  as  is  above 
intimated,  is  not  unqualified  ;  on  the  contrary,  it  must  be 
exercised,  as  in  removing  lateral  support,  in  such  a  way 
as  not  to  damage  the  owner  of  the  surface  freehold.  If 
that  freehold,  in  its  natural  condition,  be  deprived  of  its 
necessary  support  by  undei'ground  excavation,  and  dam- 
age thereby  ensue,  the  party  committing  the  act  is  liable, 
however  carefully  he  may  have  conducted  the  work  in  his 
own  freehold.  For  example :  The  defendants,  a  coal 
mining  company,  lessees  of  a  thu'd  person  of  coal  mines 

1  Ante,  p.  186.  ^  Stednian  v.  Siuitli,  8  El.  &  B.  1. 

3  Humphries  v.  Brogden,  12  Q.  B.  739  ;  s.  c.  L.  C.  Torts,  536  ; 
Wilkinson  v.  Proud,  11  M.  &  W.  33. 


Chap.  XII.  §  3.]    VIOLATING  RIGHTS  OF  SUPPORT.        251 

underlying  the  plaintiff's  close,  upon  which  there  are  no 
buildings,  in  the  careful  and  usual  manner  of  working  the 
mine  so  wealven  the  subjacent  support  to  the  plaintiff's 
close,  without  his  consent,  as  to  causje  the  same  to  sink 
and  suffer  injury.  The  defendants  are  liable  for  the 
damage  sustained.^ 

It  is  laid  down  that  there  is  a  difference  between  rights 
of  support  against  a  subjacent  owner  of  land  and  an  ad- 
jacent owner  in  regard  to  buildings  upon  the  dominant 
tenement.  The  right  to  the  support  of  buildings,  as  has 
already  been  observed,  depends  upon  grant,  reservation, 
or  (in  England)  prescription.  But,  as  against  an  under- 
lying freehold,  the  owner  of  the  surface  freehold  is  enti- 
tled, without  grant  or  reservation,  to  the  support  of  all 
buildings  erected,  however  recently,  before  the  title  of  the 
lower  owner  began  and  possession  was  taken.  For  exam- 
ple :  The  defendants  are  lessees  and  workers  of  a  mine 
under  the  plaintiff's  freehold.  The  plaintiff,  at  various 
times  before  the  defendants  began  their  works,  and  within 
twenty  years  thereof,  erects  buildings  above  the  mines  on 
ground  honeycombed  by  the  workings  of  another  com- 
pany some  years  before.  The  workings  by  the  defend- 
ants increase  the  defective  nature  of  the  ground,  and  a 
subsidence  of  the  surface  follows ;  and  from  this  cause 
and  the  fact  that  the  plaintiff's  buildings  were  not  con- 
structed with  sufficient  solidity,  considering  the  state  of 
the  ground,  damage  ensues  to  the  plaintiff's  buildings. 
The  defendants  have  violated  their  duty  to  the  plaintiff"  by 
not  shoring  up  and  supporting  the  overlying  tenement."^ 

The  support  required,  in  the  absence  of  grant  or  pre- 
scription, appears,  however,  to  be  merely  a  reasonable 

'  Humphries  v.  Biogden,  supra. 

2  Richards  v.  Jenkins,  18  Law  T.  N.  s.  437.  Of  course,  if  the  build- 
ings would  have  fallen  without  the  act  of  the  defendants,  they  would 
not  be  liable  for  the  damage  to  them. 


252  LAW  OF  TORTS.  [Part  II. 

support.  Whether  the  owner  of  the  upper  tenement 
could  require  the  owner  or  occupant  of  the  lower  to  sup- 
port structures  of  extraordinary  weight,  is  doubtful.  The 
true  view  seems  to  .be  that  when  the  owner  of  the  whole 
property  severs  it  by  a  conveyance  either  of  the  surface, 
reserving  the  mines,  or  of  the  mines,  reserving  the  sur- 
face, he  intends,  unless  the  contrary  be  made  to  appear 
by  plain  words,  that  the  land  shall  be  supported,  not 
merely  in  its  original  condition,  but  in  a  condition  suit- 
able to  any  of  the  ordinary  uses  necessary  or  incidental 
to  its  reasonable  enjoyment.^ 

There  is  an  analogous  right  of  support  in  respect  to 
the  upper  stories  of  houses  divided  into  horizontal  tene- 
ments. It  is  laid  down  that  if  a  building  is  divided  into 
flo'ors  or  '  flats,'  separately  owned,  the  owner  of  each 
upper  floor  or  '  flat '  is  entitled  to  vertical  support  from 
the  lower  part  of  the  building,  and  to  the  benefit  of  such 
lateral  support  as  may  be  of  right  enjoyed  by  the  building 
itself.^  The  same  would  (probably)  be  true  if  the  stories 
of  the  building  were  leased  to  different  persons. 

1  Richards  v.  Jenkins,  supra.  lu  this  case,  however,  Mr.  Baron 
Channel  inclined  to  think  that,  if  the  buildings  were  erected  after  the 
defendants  took  possession,  the  period  of  prescription  should  elapse  be- 
fore a  right  to  their  support  could  be  acquired. 

2  Dal  ton  V.  Angus,  6  App.  Cas.  740,  793 ,  Caledonian  Ry.  Co.  v. 
Sprot,  2  Macq.  449. 


CHAPTER  XIII. 
VIOLATION  OF  WATER  RIGHTS. 

§  1.     Introductory. 

Statement  of  the  duty.  A,  a  riparian  proprietor  or  mill 
owner,  owes  to  B,  a  riparian  proprietor  below,  on  the 
same  stream,  the  duty  to  forbear  taking,  except  for  do- 
mestic purposes,  or  for  the  needs  of  a  mill  suited  to  the 
size  of  the  stream,  anything  more  than  a  usufruct  of  the 
water  thereof. 

§  2.    Of  Usufruct  and  Reasonable  Use  of  Streams. 

Riparian  proprietors  have  rights  in  the  water  of  the 
streams  flowing  by  or  through  their  lands,  which  may  be 
thus  stated :  Each  proprietor  is  entitled  to  the  enjoyment 
of  the  water  ex  jure  naturae,  as  a  natural  incident  to  the 
ownership  of  the  land.^  And  the  right  is  like  ordinary 
property  rights  in  this,  that  an  action  may  be  maintained 
for  an  infraction  though  no  actual  damage  has  been  sus- 
tained.'^ Examples  from  the  authorities  just  cited  will 
presently  appear. 

There  have  been  some  expressions  by  the  courts,  and 
one  or  two  decisions,  to  the  effect  that  the  right  to  the  use 
of  a  running  stream  is  absolute,  like  the  right  to  the  en- 
joyment of  land  ;  so  that  any  diminution  of  the  water  by 
an  upper  proprietor  is  deemed  actionable  if  he  has  not  a 

1  Embrey  v.  Owen,  6  Ex.  353,  369,  Parke,  B. 
^  Id.  ;  Sampson  v.  Hoddiiiott,  1  C.  B.  N.  s.  590. 


254  LAW  OF   TOETS.  [Part  H. 

right  by  grant,  or  by  prescription,  just  as  an  entry  upon 
land  without  license  is  actionable.^  And  this  view  has 
been  urged  in  England.^ 

The  true  principle,  however,  is  that  each  riparian  owner 
has  at  least  a  riglit  of  usufruct  ('  usus-fructus ')  in  the 
sti'eam,  subject  to  the  rights,  whatever  they  may  be,  of  the 
riparian  owners  higher  up,  but  that  no  one  can  have  an 
absolute  right,  for  any  and  every  purpose,  to  the  whole 
volume  of  water.  That  is,  there  can  be  no  infraction  of 
the  right  by  any  abstraction  of  water  which  does  not 
sensibly  affect  its  volume.  Without  such  an  act,  the 
usufruct  is  not  interfered  with,  and  the  right  of  other 
proprietors  has  not  been  infringed.^  It  is  only  for  an 
unreasonable  use  that  an  action  will  lie.* 

What  amounts  to  an  unreasonable  use  of  a  stream  will 
vary  according  to  the  circumstances  of  the  case.  To  take 
a  quantity  of  water  from  a  large  stream  for  agriculture  or 
for  manufacturing  purposes  might  cause  no  sensible  dim- 
inution of  the  volume  ;  while  taking  the  same  quantity 
from  a  small  brook  passing  through  many  farms  would 
be  of  great  and  manifest  injury  to  those  below  who  need 
it  for  domestic  or  other  use.  This  would  be  an  unreason- 
able use  of  the  water,  and  an  action  would  lie  therefor.^ 

The  same  would  be  true  if  a  mode  of  enjoyment  quite 
different  from  the  ordinary  one  should  be  adopted,  sen- 
sibly diminishing  the  volume  of  water  for  any  consider- 

1  Wheatley  v.  Chrisman,  24  Penn.  St.  298.  See  Crooker  v.  Bragg, 
10  Wend.  260. 

2  See  the  arguments  in  Rmbrey  v.  Owen,  6  Ex.  353. 

^  Embrey  v.  Owen,  supra  ;  Mason  v.  Hill,  2  Nev.  &  M.  747  ,•  s.  c. 
5  B.  &  Ad.  1  ;  Miner  v.  Gilmour,  12  Moore,  P.  C.  131  ;  Sampson  v. 
Hoddinott,  1  C.  B.  N.  s.  590. 

*  Embrey  v.  Owen,  supra. 

5  Elliot  V.  Fitchburg  R.  Co.  10  Gush.  191  ;  s.  c.  L.  C.  Torts,  509  •, 
Miner  v.  Gilmour,  12  Moore,  P.  C.  131. 


Chap.  XIII.  §  2  ]     VIOLATION  OF   WATER  RIGHTS.         255 

able  time.^  For  example :  The  defendant,  an  npper 
riparian  owner,  diverts  much  water  from  the  stream  into 
a  reservoir,  and  delays  it  there  to  supply  a  factory  ;  this 
being  an  extraordinary  use  of  the  stream.  The  act  is  a 
breach  of  duty  to  the  plaintiff,  a  lower  owner.^  Again  : 
The  defendant  owns  a  great  tract  of  porous  land  adjacent 
to  a  stream,  the  water  of  which  he  diverts  by  canals,  in 
order  to  irrigate  his  land,  sensibly  diminishing  the  stream. 
This  is  a  breach  of  duty  to  the  plaintiff,  an  owner  lower 
down.^ 

These  examples  illustrate  the  rule  that  the  action  does 
not  require  proof  of  special  damage.  A  stream  may  be 
much  reduced  in  size  without  causing  any  actual  loss  to 
lower  proprietors  ;  but  the  right  being  to  a .  full  volume 
of  water,  the  diminution  of  the  stream  in  any  sensible, 
material  degree  by  the  upper  proprietor  is  an  infraction 
of  that  right,  and  accordingly  creates  liability.  If,  on 
the  other  hand,  there  is  no  infraction  of  the  right,  there 
is  no  liability  whatever  the  use.  For  example  :  The  de- 
fendants erect  a  dam  across  a  stream  and  take  a  consider- 
able part  of  the  water ;  but  the  amount  so  taken  is  made 
good  by  other  water  which  the  defendants  let  into  the 
stream,  and  the  plaintiff  in  fact  sustains  no  damage. 
There  is  no  infraction  of  the  plaintiff's  right,  and  no 
cause  of  action.* 

Again,  every  riparian  proprietor  may  use  the  water  of 
the  stream  for  his  natural  domestic  purposes,  including 
the  needs  of  his  animals,  and  this  without  regard  to  the 

1  Sanip.son  r.  Hoddinott,  1  C.  B.  n.  s.  590, 

2  Wood  V.  Waud,  3  Ex.  748,  781. 

8  Embrey  v.  Owen,  6  Ex.  353,  372. 

4  Elliot  V.  Fitchburg  R.  Co.  10  Cush.  191  ;  L.  C.  Torts,  509.  See 
also  Seeley  v.  Brush,  35  Conn.  419  ;  Chatfield  v.  Wilson,  31  Vt.  358  ; 
Gerrish  v.  New  Market  Manuf.  Co.  30  N.  H.  478,  483  ;  Dilling  v. 
Murray,  6  Ind.  324. 


256  LAW  OF  TORTS.  [Part  II. 

effect  it  may  have,  in  case  of  deficiency,  upon  those  lower 
down.^  That  is,  the  right  is  not  limited  to  the  usufruct ; 
the  whole  may  be  taken  if  needed. 

And  this  leads  to  the  remark  that  one  criterion  of  lia- 
bility for  abstracting  water  from  streams,  used  for  milling 
purposes,  (probably)  is  whether,  considering  all  the  cir- 
cumstances, the  size  of  the  stream  and  that  of  the  mill- 
works,  there  has  been  a  greater  use  of  the  stream,  in 
abstracting  or  detaining  the  water,  than  is  reasonably 
necessary  and  usual  in  similar  establishments  for  carrying 
on  the  mill.  A  mill-owner  is  not  liable  for  obstructing 
and  using  the  water  for  his  mill,  if  it  appear  that  his  dam 
is  of  such  magnitude  only  as  is  adapted  to  the  size  and 
capacity  of  the  stream,  and  to  tlie  quantity  of  water 
usually  flowing  therein,  and  that  his  mode  of  using  the 
water  is  not  unusual  or  unreasonable,  according  to  the 
general  custom  of  the  country  in  cases  of  dams  upon 
similar  streams ;  and  this,  whatever  may  be  the  effect 
upon  the  owners  of  land  below. ^ 

The  water  of  a  stream  running  wholly  within  a  man's 
land  may  be  diverted,  if  it  be  returned  to  its  natural  chan- 
nel before  reaching  the  lower  proprietor  ;  ^  and  this  could 
perliaps  be  done  where  the  water  runs  between  the  lands 
of  riparian  occupants,  so  far  as  the  rights  of  parties  lower 
down  are  concerned.  The  only  person  entitled  to  com- 
plain of  such  an  act  would  be  the  opposite  proprietor. 

1  Miner  v.  Gilmour,  12  Moore,  P.  C.  131  ;  Wood  v.  Waud,  supra  ; 
Evans  ■;;.  Merriweather,  3  Scam.  492,  495  ;  Flemings.  Davis,  37  Texas, 
173,  198  ;  Baker  v.  Brown,  55  Texas,  377. 

2  Spiingfield  v.  Harris,  4  Allen,  494  ;  s.  c.  L.  C.  Torts,  506.  See 
Davis  V.  Getchell,  50  Maine,  602  ;  Merrifield  v.  Worcester,  110  Mass. 
216  ;  Hayes  v.  Waldron,  44  N.  H.  580  ;  Pool  v.  Lewis,  41  Ga.  162  ; 
Timm  v."  Bear,  29  Wis.  254  ;  Clinton  v.  Myers,  46  N.  Y.  511.  The 
statutes  with  regard  to  mill-streams  should,  however,  he  noticed. 

8  Miner  v.  Gilmour,  supra  ;  ToUe  v.  Correth,  31  Texas,  362. 


Chap.  XIII.  §  2.]     VIOLATION   OF   WATER   RIGHTS.         257 

It  is  to  be  observed,  however,  that  the  foregoing  sup- 
poses that  there  exists  no  right  by  prescription  or  grant 
to  the  use  of  the  stream  by  either  the  upper  or  lower  pro- 
prietor. The  rights  and  burdens  of  the  parties  may  be 
greatly  varied  by  grant  or  by  prescription. 

With  regard  to  surface  water  running  in  no  defined 
channel,  the  rule  of  law  is  that  every  occupant  of  land 
has  the  right  to  appropriate  such  water,  though  the  result 
is  to  prevent  the  flow  of  the  same  into  a  neighboring 
stream,  or  upon  the  land  of  an  adjoining  occupant.^  Nor 
can  there  be  any  prescriptive  right  to  such  water.  For 
example  :  The  defendant,  for  agricultural  and  other  use- 
ful purposes,  digs  a  drain  in  his  land,  the  effect  of  which 
is  to  prevent  the  ordinary  rainfall,  and  the  waters  of  a 
spring  arising  upon  his  land,  and  flowing  in  no  defined 
channel,  from  reaching  a  brook,  upon  which  the  plaintiff 
has  for  fifty  years  had  a  mill.  The  defendant  is  not  lia- 
ble for  the  diversion,  however  serious  the  inconvenience 
to  the  plaintiff.^ 

In  the  Pacific  States  the  law  is  peculiar.  There  he  wlic 
first  duly  appropriates  all  the  waters  of  a  stream  run- 
ning in  the  public  lands  becomes  entitled  to  the  same  to 
the  exclusion  of  all  others.^  But  if  only  part  is  appro- 
priated, another  may  appropriate  the  rest ;  or  if  all  is 
appropriated  only  on  certain  days,  others  may  appro- 
priate on  other  days.^ 

1  Broadbent  v.  Ramsbotham,  11  Ex.  602  ;  Luther  v.  Winnisimmet 
Co.  9  Gush.  171;  Gannon  v.  Hargadon,  10  Allen,  106;  Curtis  v. 
Ayrault,  47  N.  Y.  73,  78  ;  Livingston  v.  McDonald,  21  Iowa,  160, 
166. 

2  Broadbent  v.  Ramsbotham,  supra  ;  Rawstron  v.  Taylor,  11  Ex.  369. 

3  Smith  V.  O'Hara,  43  Cal.  371. 

•*  Id.  As  to  what  is  a  due  appropriation,  see  Weaver  v.  Eureka 
Lake  Co.  15  Cal.  271  ;  McKinney  v.  Smith,  21  Cal.  374. 

17 


258  LAW   OF   TORTS.  [Part  II. 

§  3.     Of  Sub-surface  AVater. 

In  regard  to  underground  streams,  if  their  course  is 
defined  and  known,  as  is  the  case  with  streams  which  sink 
under  ground,  pursue  for  a  short  distance  a  subterraneous 
course,  and  then  emerge  again,  the  owner  of  the  land 
lower  down  has  the  same  rights  as  he  would  have  if  the 
stream  flowed  entirely  above  ground.^  But,  if  the  under- 
ground water  be  merely  percolation,  there,  can  be  no 
breach  of  duty  in  cutting  it  off  from  a  lower  or  adjoining 
land-owner.  And  there  can  be  no  prescriptive  right  to 
the  water.  For  example  :  The  defendant,  a  land-owner 
adjoining  the  plaintiff,  digs  on  his  own  ground  an  extensive 
well  for  the  purpose  of  supplying  water  to  the  inhabitants 
of  a  district,  many  of  whom  have  no  title  as  land-owners 
to  the  use  of  the  water.  The  plaintiff  has  previously  for 
more  than  sixty  years  enjoyed  the  use  of  a  stream  (for 
milling  purposes)  which  was  chiefly  supplied  by  perco- 
lating underground  water,  produced  by  rainfall ;  which 
water  now,  after  the  digging  of  the  well,  is  cut  off  and 
fails  to  reach  the  stream.  The  defendant's  act  is  no 
breach  of  duty  to  the  plaintiff.^ 

1  Dickinson  v.  Grand  June.  Canal  Co.  7  Ex.  282. 

2  Chasemore  v.  Richards,  7  H.  L.  Cas.  349,  overruling  Balston  v. 
Bensted,  1  Camp.  463.  No  right  to  such  percolating  water  can  arise 
by  grant  or  by  prescrijjtion  apart  from  the  right  to  the  land  itself.  Id. 
Further  see  Chase  v.  Silverstone,  62  Maine,  17-5  ;  Wilson  v.  New  Bed- 
ford, 108  Mass.  261  ;  Frazier  v.  Brown,  12  Ohio  St.  294;  Hanson  v. 
McCue,  42  Cal.  303.  In  New  Hampshire  the  right  to  cut  off  percolat- 
ing water  depends  upon  the  reasonable  use  of  the  soil.  Bassett  v. 
Salisbury  Manuf.  Co.  43  N.  H.  .569  ;  Swett  v.  Cutts,  50  N.  H.  439. 
As  to  polluting  streams,  see  post,  pp.  264,  265. 


CHAPTER  XIY. 

NUISANCE. 
§  1.     Iktroductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  (1)  to  for- 
bear to  obstruct  or  impair  the  use  of  the  public  ways  or 
waters  in  such  a  manner  as  to  cause  damage  to  B  ;  (2)  to 
forbear,  except  in  the  ordinary,  natural  use  of  his  own, 
to  flood  the  laud  of  B  with  water  collected  upon  his  own 
land,  or  by  changing  the  course  of  currents  ;  ^  (3)  to  for- 
bear to  cause  or  suffer  the  existence  upon  his  own 
premises  of  anything  not  naturally  there  which  causes 
damage  to  B ;  (4)  to  forbear  so  to  use  his  own  premises 
as  to  endanger  the  life  or  impair  the  health  of  B,  or  to 
disturb  his  physical  comfort  in  a  material  degree  in  the 
use  of  his  (A's)  premises. 

1.  Public  nuisances  are  indictable  nuisances,  being 
committed  (1)  in  the  public  ways  or  waters,  or  (2)  on 
private  premises  to  the  prejudice  of  the  general  public.^ 

2.  Private  nuisances  are  non-indictable  nuisances, 
being  committed  on  private  premises  to  the  prejudice  of 
one  person,  or  but  a  few  persons,  of  the  neighborhood. 

3.  A  public  nuisance  may  be  also  a  private  nuisance. 

1  But  see  infra,  p.  264. 

2  '  If  a  person  erects  on  his  own  land  anything  whatever  calculated 
to  interfere  with  the  convenient  use  of  the  road,  he  commits  a  nuisance.' 
Stephen,  J.  in  Brown  v.  Eastern  Ry.  Co.  22  Q.  B.  Div.  391,  392,  case 
of  a  heap  of  dirt  by  the  roadside. 


260  LAW  OF  TORTS.  [Part  IL 


§  2.     Of  what  constitutes  a  Nuisance. 

It  appears  to  be  of  the  essence  of  a  nuisance  that  there 
should  be  some  duration  of  mischief ;  a  wrong  producing 
damage  instantaneously,  as  in  the  case  of  an  explosion,^ 
could  hardly  be  a  nuisance.  And  then  further  to  deter- 
mine what  constitutes  a  nuisance,  so  as  to  render  the 
author  of  it  liable  to  a  neighbor  in  damages,  a  variety  of 
other  considerations  must  often  be  taken  into  account ; 
especially  where  the  act  in  question  has  been  committed 
in  a  populous  neighborhood,  in  the  prosecution  of  a  man- 
ufacturing business.  And,  even  if  the  business  itself  be 
unlawful,  it  does  not  follow  that  a  private  individual  can 
call  for  redress  by  way  of  a  civil  action  for  damages. 
Whether  he  can  do  so  or  not  will  depend  upon  the  ques- 
tion whether  he  has  sustained  special  damage,  by  reason 
of  the  thing  alleged  to  be  a  nuisance. 

Even  supposing  the  nuisance  not  to  be  a  public  one, 
that  is,  not  to  affect  seriously  the  rights  of  the  public  in 
general,  much  difficulty  arises  in  determining  when  the 
business  carried  on  upon  neighboring  premises,  either  in 
itself  or  in  the  manner  of  conducting  it,  is  so  detrimental 
as  to  subject  the  proprietor  or  manager  to  liability  in 
damages.  And  this  difficulty  was  until  recently  increased 
by  certain  inexact  terms  used  in  the  old  autliorities.  It 
was  said  that  if  a  business  was  carried  on  in  a  'reason- 
able manner,'  an  action  for  damages  could  not  be 
maintained,  though  annoyance  resulted ;  and  the  term 
'  reasonable  manner  '  was  explained  as  meaning  that  the 
business  was  to  be  cai'ried  on  merely  in  a  convenient  place. 
That  is,  a  trade  was  not  to  be  treated  as  a  nuisance  if 
carried  on  in  the  ordinary  manner  in  a  convenient  locality. 
The  result  was  to  bestow  upon  a  manufacturer  the  right 

^  Au  explosion  might  be  a  consequence  of  a  nuisance,  however. 


CuAP.  XIV.  §  2.]  NUISANCE.  261 

to  ruin  his  neighbor's  property,  provided  only  his  business 
was  carefully  conducted  in  a  locality  convenient  for  its 
management.^ 

Recent  authorities  have,  however,  changed  all  this,  by 
declaring  that,  when  no  prescriptive  right  is  proved,  the 
true  meaning  of  the  term  '  convenient,'  used  by  the  older 
authorities,  lies  in  the  consideration  whether  the  plaintiff 
has  suffered  a  visible  detriment  in  his  property  by  reason 
of  the  management  or  nature  of  the  defendant's  business  ; 
if  he  has,  the  defendant  is  liable.  Convenience  is  a  ques- 
tion for  the  neighbor  and  not  for  the  manufacturer ;  and 
visible  damage  to  the  neighbor's  property  shows  that  the 
business  is  carried  on  at  an  inconvenient  place. '^  For  ex- 
ample :  The  defendants  are  proprietors  of  copper-smelting 
works  in  the  plaintiff's  neighborhood,  where  many  other 
manufacturing  works  are  carried  on.  The  vapors  from 
the  defendant's  works,  when  in  operation,  are  visibly 
injurious  to  the  trees  on  the  plaintiff's  estate  ;  the  de- 
fendants having  no  prescriptive  right  to  carry  on  tlieir 
business  as  and  where  they  do.  The  defendants  are 
guilty  of  a  breach  of  duty  to  the  plaintiff,  for  which  they 
are  liable  in  damages  ;  though,  for  the  purposes  of  manu- 
facturing, the  business  is  carried  on  at  a  convenient 
place. ^ 

However,  a  person  living  in  a  ix)pulous  neighborhood 
must  suffer  some  annoyance  ;  that  is  part  of  the  price  he 
pays  for  the  privileges  which  he  may  enjoy  there.  He 
cannot  bring   an   action    for   every  slight   detriment  to 

^  Comyns's  Digest,  Action  upon  the  Case  for  a  Nuisance,  C  ;  Hole 
V.  Barlow,  4  C.  B.  n.  s.  334. 

2  Bamford  v.  Turnley,  3  Best  &  S.  62,  66  ;  Cavey  v.  Ledbitter,  13 
C.  B.  N.  s.  470  ;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  Cas. 
642;  s.  c.  L.  C.  Torts,  454. 

3  St.  Helen's  Smelting  Co.  v.  Tipping,  supra.  See  also  Broadbent 
V.  Imperial  Gas  Co.,  7  De  G.  M.  &  G.  436;  s.  c.  7  H.  L.  Cas.  600. 


262  LAW  OF  TORTS.  [Part  II. 

Ms  property  which  a  business  in  the  vicinity  may  pro- 
duce. Or,  to  state  the  case  in  the  language  of  judicial 
authority,  if  a  man  live  in  a  town,  it  is  necessary  that 
he  should  subject  himself  to  the  consequences  of  those 
operations  of  trade  which  may  be  carried  on  in  his  imme- 
diate locality,  which  are  actually  necessary  for  trade  and 
commerce,  and  also  for  the  enjoyment  of  property,  and 
for  the  benefit  of  the  inhabitants  of  the  town  and  of  the 
public  at  large.  If  a  man  live  in  a  street  where  there  are 
numerous  shops,  and  a  shop  be  opened  next  door  to  him, 
which  is  carried  on  in  a  fair  and  reasonable  way,  he  has 
no  ground  of  complaint  because  to  himself  individually 
there  may  arise  much  discomfort  from  the  trade  carried 
on  in  that  shop.  But  when  an  occupation  is  carried  on 
by  one  person  in  the  neighborhood  of  another,  and  the 
result  of  that  occupation  is  a  visible  injury  to  property, 
the  case  is  different,^ 

It  should  be  observed  in  this  connection  that  the  plain- 
tiff is  not  precluded  from  recovering  by  reason  of  the  fact 
that  he  had  notice  of  the  existence  of  the  nuisance  when 
he  located  himself  near  it.  If  the  thing  complained  of  be 
unlawful  —  if  there  be  no  prescriptive  right  to  do  it  —  the 
doer  cannot  set  up  notice  to  escape  liability.'^  For  exam- 
ple :  The  defendant  is  a  tallow-chandler,  carrying  on  his 
business  in  a  certain  messuage,  in  such  a  manner  as  to 
convey  and  diffuse  noxious  vapors  and  smells  over  prem- 
ises adjoining,  which  the  plaintiff  takes  possession  of 
while  the  defendant  is  carrying  on  his  business.  The 
defendant  is  liable.^ 

Subject  to  any  annoyance  which  may  result  from  the 
right   which  every   landowner   has  to  the  ordinary    and 

1  Lord  Westbury  in  St.  Helen's  Smelting  Co.  v.  Tipping. 
55  Bliss  V.  Hall,  4  Bing.  N.  C.  183  ;  Bamford  v.  Turnley,  3  Best  & 
S.  62,  70,  73  ;  L.  C.  Torts,  467. 
8  Bliss  V.  Hall,  supra. 


Chap.  XIV.  §  2.]  NUISANCE.  263 

natural  use  of  his  premises,  it  is  held  by  high  authorities 
that  no  one  may  turn  water  from  his  own  land  back  upon 
that  of  his  neighbor  without  having  acquired  a  right  so 
to  do  by  statute  or  by  grant  or  prescription  ;  ^  and  this 
though  the  water  thrown  bade  comes  of  natural  rainfall.'^ 
Such  an  act  might  by  these  authorities  be  treated  as  a 
trespass,  and  therefore  should  be  redressible  though  no 
damage  had  been  sustained  ;  for  otherwise  a  right  to  send 
the  water  there  might  eventually  be  acquired  by  prescrip- 
tion, to  the  substantial  confiscation  of  the  particular  piece 
of  land.  For  example  :  The  defendant  erects  an  embank- 
ment upon  his  land,  whereby  the  surface-water  accumu- 
lating upon  the  plaintiff's  land  is  prevented  from  flowing 
oft'  in  its  natural  courses,  and  caused  to  flow  in  a  different 
direction  over  his  land.  This  is  a  breach  of  duty  for 
which  the  defendant  is  liable  to  the  plaintiff,  though  the 
latter  suffer  no  damage  thereby.^ 

More  clearly  then  will  the  flooding  of  a  neighbor's  land 
create  liability  when  damage  is  caused  ;  indeed,  liability  is 
held  to  be  created  not  only  where  the  water  is  thrown 
back  by  means  of  a  dam,  but  also  where  a  stream  or  a 
ditch  is  caused  to  overflow  by  turning  into  it  water  not 
naturally  or  entirely  tributary  to  it.  For  example  :  The 
defendant,  in  the  course  of  reclaiming  and  improving  his 
land,  collects  the  surface  water  of  his  premises  into  a 

1  Hurdman  v.  Northeastern  Ry.  Co.  3  C.  P.  Div.  168  ;  Whalley  v. 
Lancashire  Ry.  Co.  13  Q.  B.  Div.  131  ;  Tootle  v.  Clifton,  22  Ohio  St. 
247.  See  also  Martin  v.  Riddle,  26  Penn.  St.  415;  Kauffman  t;.  Giese- 
mer,  Id.  407  ;  Ogburn  v.  Connor,  46  Cal.  346  ;  Laumer  v.  Francis,  23 
Mo.  181.     Contra,  by  other  authorities.     See  infra. 

2  Hurdman  v.  Northeastern  Ey.  Co.  supra. 

8  Tootle  i;.  Clifton,  22  Ohio  St.  247.  This,  it  should  be  observed, 
is  not  the  case  of  bringing  water,  as  by  means  of  a  reservoir,  upon  one's 
land  (Rylands  v.  Fletcher,  L.  R.  3  H  L.  Cas.  330  ;  post,  chapter  xii.)  ; 
for  there  the  purpose  is  not  to  throw  the  water  back  but  to  hold  it, 
Escape  in  such  a  case  might  not  be  a  trespass. 


264  LAW  OF  TORTS.  [Part  IL 

drain  or  ditch,  and  thereby  greatly  increases  the  quan- 
tity, or  changes  the  manner,  of  the  flow  upon  the  lower 
lands  of  the  plaintiff,  to  his  damage.  The  defendant  is 
liable.-' 

So  far  as  the  doctrine  of  the  two  preceding  paragraphs 
applies  to  surface  water,  or  water  flowing  through  drains 
or  ditches,  and  not  in  natural  streams,  it  is  rejected  by 
some  authorities.  By  these  it  is  held  that  a  coterminous 
proprietor  may  change  the  surface  of  his  land  by  rais- 
ing or  filling  it  to  a  higher  grade,  by  the  construction  of 
dykes  or  other  improvements,  though  the  effect  be  to 
bring  an  accumulation  of  water  on  adjacent  land,  and  to 
prevent  it  from  passing  off.  The  right  to  the  free  use  of 
one's  land  above,  upon,  or  beneath  the  surface  cannot,  it 
is  deemed,  be  prevented  by  considerations  of  damage  to 
others  caused  in  that  way,  so  long  as  tlje  operations  are 
carried  on  properly  for  the  end  in  view.^ 

If  the  water  of  a  stream  be  polluted,  or  otherwise  ren- 
dered useless,  or  perhaps  materially  less  useful  than  it 
was  before,  whether  it  be  surface  or  sub-surface  water, 
and  damage  ensue  to  another  riparian  owner,  he  can 
maintain  an  action  therefor,  unless  a  right  to  do  the  thing 
has  been  acquired  by  statute  or  by  grant  or  prescription.^ 
In  the  case  of  statutory  authority  to  pollute  the  waters  of 
a  stream,  however,  this  doctrine  is  to  be  taken  with  quali- 
fication. It  has  been  laid  down  in  regard  to  such  cases 
that  a  city  is  not  liable  for  polluting  by  sewage  the  water 
of  a  stream  which  it  has  a  right  to  use  for  that  purpose, 

1  Livingston  v.  McDonald,  21  Iowa,  160. 

2  Gannon  v.  Hargadon,  10  Allen,  106  ;  Dickinson  v.  "Worcester,  -7 
Allen,  19  ;  Swett  v.  Cutts,  50  N.  H.  439  ;  Brown  v.  Collins,  53  N.  H. 
443. 

3  Wheatley  v.  Chrisman,  24  Penn.  St.  298  ;  O'Riley  v.  McCheeney, 
3  Lans.  278  ;  Merrifield  v.  Worcester,  110  Mass.  210.  See  Clowes  v. 
Staffordshire  Waterworks  Co.  L.  R.  8  Ch.  125  ;  Goldsmid  v.  Tunbridge 
Wells  Coin'rs,  L,  R,  1  Eq.  161,  affirmed,  L.  R.  1  Ch.  349. 


Chap.  XIV.  §  2.]  NUISANCE.  205 

so  far  as  the  effect  is  the  necessary  result  of  the  system 
of  drainage  adopted  by  tlie  city  ;  but  it  is  otherwise  if  the 
pollution  is  attributable  to  the  negligence  of  the  city  either 
in  managing  the  system  or  in  the  construction  of  sewers,^ 
or  if  the  right  is  exceeded.  The  right,  whether  statutory 
or  otherwise,  must  be  exercised  in  a  reasonable  and 
proper  way.^ 

For  milling  and  other  purposes,  for  which  some  large 
or  special  use  of  the  water  of  a  stream  is  required,  statu- 
tory rights  are  often  granted,  under  various  restrictions, 
to  flood  the  lands  lying  along  the  mill-streams,  or  to  foul 
the  water ;  for  the  nature  of  which  rights  reference  should 
be  made  to  the  statutes  and  the  judicial  interpretations  of 
them. 

With  regard  to  actions  for  nuisances  to  personal  enjoy- 
ment, it  appears  to  be  quite  clear  that  for  such  smells  or 
vapors  proceeding  from  a  neighbor's  premises  as  are 
merely  disagreeable,  at  least  such  smells  or  vapors  as 
are  the  necessary  effect  of  a  business  properly  conducted 
there,  no  action  is  maintainable.^  The  noxious  gases 
must  produce  some  important  sensible  effect  upon  physi- 
cal comfort.  A  person  is,  indeed,  sometimes  said  to  be 
entitled  to  an  uupolluted  and  untainted  stream  of  air  for 
the  necessary  supply  and  reasonable  use  of  himself  and 
family ;  but  by  the  terms  '  untainted  '  and  '  unpolluted ' 
are  meant,  not  necessarily  air  as  fresh,  free,  and  pure  as 
existed  before  the  business  in  question  was  begun,  but  air 

1  Merrifield  v.  Worcester,  supra.  See  Blyth  v.  Birmingliain  Water- 
works Co.  11  Ex.  781,  to  the  same  effect  in  regard  to  the  escape  of 
water. 

2  Baxendale  v.  McMurray,  L.  R.  2  Ch.  790.  The  fact  that  certain 
works,  improperly  done,  in  the  public  highway  are  satisfactory  to  the 
municipal  authorities  will  not  prevent  them  from  being  a  nuisance. 
Osgood  V.  Lynn  R.  Co.  130  Mass.  492. 

8  See  St.  Helen's  Smelting  Co.  i;.  Tipping,  11  H.  L.  Cas.  642. 


266  LAW  OF  TORTS.  [Part  IL 

not  rendered  to  an  important  degree  less  compatible,  or 
certainly  not  incompatible,  with  the  physical  comfort  of 
human  existence. ■■■ 

The  criterion,  therefore,  of  liability  for  a  supposed 
(private  -)  nuisance,  affecting  the  bodily  comfort  of  the 
plaintiff,  is  whether  the  inconvenience  should  be  consid- 
ered as  more  than  fanciful,  —  more  than  one  to  mere 
delicacy  or  fastidiousness,  —  as  an  inconvenience  materi- 
ally interfering  with  the  ordinary  physical  comfort  of 
human  existence,  not  merely  according  to  elegant  or 
dainty  modes  and  habits  of  living,  but  according  to  plain 
and  simple  modes  of  life.^  On  the  other  hand,  it  is  not 
necessary  that  health  should  be  impaired.  For  example  : 
The  defendant  erects  upon  his  premises,  adjoining  the 
premises  of  the  plaintiff",  a  kiln  for  the  manufacture  of 
bricks,  and  in  the  process  of  the  manufacture  the  smoke 
and  vapors  and  floating  substances  from  the  kiln  are 
constantly  directed  to  and  within  the  plaintiff's  house,  so 
as  to  affect  materially  the  comfort  of  himself  and  family 
as  persons  of  ordinary  habits  of  life.  This  is  a  breach 
of  duty  to  the  plaintiff,  though  it  appear  that  the  health 
of  his  family  has  actually  been  better  since  the  erection  of 
the  kiln  than  before.^ 

It  matters  not  what  it  is  that  produces  the  discomfort : 
smoke  alone  may  be  sufficient ;  and  the  same  is  true  of 
noxious  vapor  alone,  or  of  offensive  smells  alone.  What- 
ever produces  a  material  discomfort  to  human  life  in  the 

1  Walter  v.  Selfe,  4  De  G.  &  S.  315. 

2  It  is  doubtful  if  the  right  of  action  for  injury  by  a  public  nuisance 
would  stand  on  different  ground  ;  but  the  court  in  Walter  v.  Selfe  is 
careful  to  say  that  a  private  nuisance  is  there  spoken  of. 

3  Walter  v.  Selfe,  supra.  See  also  Crump  v.  Lambert,  L.  R.  3  Eq. 
409  ;  affirmed,  17  L.  T.  N.  s.  133  ;  Columbus  Gas  Co.  v.  Freeland,  12 
Ohio  St.  392. 

*  Walter  v.  Selfe,  supra. 


Chap.  XIV.  §  2.]  NTJISANCE.  207 

neighborhood  is  a  nuisance,  for  which  damages  are  re- 
coverable.^ But  the  provisions  of  statute  in  regard  to 
such  annoyances,  arising  from  the  carrying  on  of  a  law- 
ful business,  should  always  be  examined.^ 

Liability  for  disturbing  one's  peace  of  mind  appears 
to  be  more  restricted,  and  to  be  confined  to  acts  which 
would  produce  a  like  effect  upon  all  persons,  such  as 
acts  of  indecency.  If  the  disturbance,  while  affecting 
the  plaintift"s  mind  disagreeably  and  seriously,  would 
not  so  affect  the  mind  of  others  generally,  there  is  no 
ground  of  action.  This  is  deemed  to  be  the  case  of 
mere  noise  on  Sunday  or  during  religious  worship.  For 
example :  The  defendant  disturbs  the  plaintiff  during 
divine  service  in  church,  by  making  loud  noises  in  sing- 
ing, reading,  and  talking.  This  is  no  breach  of  duty 
to  the  plaintiff'.^ 

Thus  far  of  private  nuisances.  In  regard  to  public 
nuisances,  it  is  to  be  observed  that  such  become  private 
nuisances  as  well,  by  inflicting  upon  a  particular  indi- 
vidual any  special  or  particular  damage.  For  example : 
The  defendant,  without  authority,  moors  a  barge  across 
a  public  navigable  stream,  and  harmfully  obstructs  the 
navigation  thereof  to  the  plaintiff,  who  at  the  time  is 
floating  a  barge  down  the  stream.  This  is  a  breach  of 
duty  to  the  plaintiff,  for  which  the  defendant  is  liable 
in  damages.* 

1  Crump  V.  Lambert,  supra. 

2  In  regard  to  smoke,  under  statutory  provisions,  see  Cooper  v. 
Woolley,  L.  K.  2  Ex.  88  ;  Smith  v.  Midland  Ry.  Co.  37  L.  T.  N.  s. 
224. 

8  Owen  V.  Henman,  1  "Watts  &,  S.  548.  See  also  First  Baptist 
Church  V.  Utica  R.  Co.  5  Barb.  79  ;  Sparhawk  v.  Union  Ry.  Co.  54 
Penn.  St.  401,  cases  of  public  nuisance. 

*  Rose  V.  Miles,  4  Maule  &  S.  101  ;  s.  c.  L.  C.  Torts,  460.  See  also 
Booth  V.  Ratte,  15  App.  Cas.  188. 


268  LAW   OF   TORTS.  [Part  II 

If,  however,  the  obstruction  or  invasion  of  the 
right  be  one  of  like  effect  upon  all  persons,  producing 
no  particular,  actual  damage  to  any  individual,  no  in- 
dividual can  maintain  an  action  for  damages  by  reason 
of  it.  In  other  words,  it  is  necessary  to  the  main- 
tenance of  an  action  for  damages  for  a  public  nui- 
sance (and  the  same  is  true  of  a  private  nuisance) 
that  the  plaintiff  should  have  suffered  actual,  specific 
damage  thereby.^ 

It  matters  not  that  the  special  damage  sustained  by  the 
plaintiff  is  common  to  a  large  number  of  individuals,  or  to 
the  whole  neighborhood  ;  enough  if  there  is  actual  damage 
to  his  property,  or  injury  to  his  health,  or  to  his  physical 
comfort  (as  explained  in  considering  private  nuisances). 
The  injury  inflicted  upon  private  interests  is  not  merged  in 
the  wrong  done  to  the  general  public.  For  example  :  The 
defendants  cany  on  a  large  business  as  auctioneers  near 
a  coffee-house  kept  by  the  plaintiff  in  a  narrow  street  in 
London.  From  the  rear  of  the  defendant's  building, 
which  there  adjoins  the  plaintiff's  house,  the  defendants 
are  constantly  loading  and  unloading  goods  into  and 
from  vans,  and  stalling  their  horses.  This  intercepts  the 
light  of  the  coffee-house  so  as  to  require  the  plaintiff  to 
burn  gas  most  of  the  day-time,  o])structs  the  entrance  to 
the  door,  and  renders  the  plaintiff's  premises  uncomfort- 
able from  stench.  The  nuisance  is  a  public  one,  but  the 
plaintiff  suffers  a  special  and  particular  damage  from  it 
for  which  the  defendant  is  liable  to  him.^  Again:  The 
defendants  carry  on  a  manufacturing  business  in  such  a 
way  as  to  make  themselves  liable  for  causing  a  public 
nuisance.     The  plaintiff's  premises  are  filled  with  smoke, 

1  "Wesson  v.  Washburn  Iron  Co.  13  Allen,  95  ;  Milhau  v.  Sharp,  27 
N.  Y.  612  ;  Grigsby  v.  Clear  Lake  Water  Co.  40  Cal.  396  ;  Benjamin 
V.  Storr,  L.  R.  9  C.  P.  400  ;  Fritz  v.  Hobson,  14  Ch.  D.  542. 

2  Benjamin  v.  Storr,  supra. 


Chap.  XIV.  §  2.]  NUISANCE.  269 

and  his  house  shaken  so  as  to  be  uncomfortable  for  occu- 
■patiou.  This  is  a  breach  of  duty  to  the  plaintiff,  for 
which  he  is  entitled  to  damages,  though  every  one  else  la 
the  vicinity  suffers  in  the  same  manner.^ 

It  is,  however,  a  difficult  matter  to  state  what  sort  of 
detriment  will  amount  to  special  damage  within  the  law  of 
public  nuisances.  It  appears  to  be  necessary  in  the  case 
of  obstructions  of  public  ways  or  waters  that  a  particular 
user  had  been  begun  by  the  plaintiff,  and  that  such  user 
was  interrupted  by  the  wrongful  act  of  the  defendant.'^ 
Before  the  complaining  party  has  entered  upon  the  actual 
enjoyment  of  the  public  easement,  the  wrongful  act  does 
not  directly  affect  him,  or  at  least  does  not  affect  him  in 
a  manner  to  enable  a  court  to  measure  the  loss  inflicted 
upon  him.  If  he  desire  to  make  use  of  the  easement,  he 
can  complain  to  the  prosecuting  officer,  and  require  him 
to  enter  public  proceedings  against  the  offender ;  or  (so 
it  seems),  he  may  proceed  to  make  his  particular  use  of 
the  easement,  and  if  the  obstruction  be  not  removed  before 
he  reaches  it,  or  in  time  for  him  to  have  the  full  enjoy- 
ment of  passage,  he  may  bring  an  action  for  the  damage 
which  he  has  sustained  in  the  particular  case  by  reason  of 
the  obstruction. 

This  latter  proposition  follows  from  the  rule  of  law 
already  noticed,  that  the  plaintiff  is  not  barred  of  a 
recovery  in  damages  by  reason  of  having  notice  of  the 
existence  of  the  nuisance  when  he  put  himself  in  the  way 
of  suffering  damage  from  it.^  Such  a  case  does  not  come 
within  the  principle  that  a  consenting  party  cannot  re- 
cover for  damage  sustained  by  reason  of  an  act  the  con- 
sequences   of  which    he  has  invited,*  since   he  has   not 

1  Wesson  v.  "Washburn  Iron  Co.  13  Allen,  95. 

2  See  Rose  v.  Miles,  4  Maule  &  S.  101  ;  s.  c.  L.  C.  Torts,  460. 

3  Ante,  p.  262. 

*  'Volenti  non  fit  injuria.' 


270  LAW   OF   TORTS.  [Part  II. 

consented  to  the  act  complained  of,  or  invited  its 
consequences.  He  may  have  reason  to  suppose  that 
the  obstruction  will  be  removed  before  he  reaches  it ; 
or,  if  not,  he  may  well  say  that  it  is  wrongful,  and 
must  be  removed  before  he  reaches  it,  on  pain  of  dam- 
ages for  any  loss  which  he  may  sustain  by  reason  of 
its  continuance. 

If  the  obstruction  of  itself  be  insufficient  to  cause 
any  actual  damage,  it  is  considered  that  no  right  of 
action  can  be  derived  by  incurring  expense  in  remov- 
ing it.  For  example :  The  defendant  obstructs  a  pub- 
lic footway,  and  the  plaintiff,  on  coming  to  the 
obstruction,  in  passing  along  the  way,  causes  the  ob- 
struction to  be  removed ;  and  this  is  repeated  several 
times.  No  other  damage  is  proved.  The  defendant 
is  not  liable.^ 

It  follows  that  the  mere  fact  that  the  plaintiff  has 
been  turned  aside  by  reason  of  the  obstruction  and 
caused  to  proceed,  if  at  all,  by  a  different  route  from 
that  intended  by  him,  is  not  special  damage  ;  he  must 
have  suffered  some  specific  loss  by  reason  of  being  thus 
defeated  in  his  purpose.  And  this  would  be  true  also 
of  obstructions  to  the  public  wagon  roads.  For  exam- 
ple :  The  defendant  obstructs  a  public  highway  leading 
directly  to  the  plaintiff's  farm,  and  the  plaintiff  is  thereby 
compelled  to  go  to  his  land,  if  at  all,  with  his  team,  by 
a  longer  and  very  circuitous  road ;  but  no  specific  loss 
is  proved.  The  defendant  is  deemed  not  liable  to  the 
plaintiff.^ 

The  case  has  been  considered  to  be  different  if  the 
way  were  of  peculiar  use  to  the  plaintiff,  as  by  being 
his  only  means  of  reaching  his  land  with  teams.      For 

1  "Winterbottom  v.  Derby,  L.  R.  2  Ex.  316. 

2  Houck  V.  Wachter,  34  Md.  265.  Contra,  Brown  v.  Watrous,  47 
Maine,  161. 


Chap.  XIV.  §  2.]  NUISANCE.  271 

example :  The  defendant,  by  raising  the  water  of  his 
dam,  floods  a  highway  and  renders  it  impassable  ;  this 
highway  furnishing  the  only  means  of  reaching  part  in 
use  of  the  plaintiff's  farm.  The  defendant  is  deemed 
to  be  liable.-' 

*  Venard  v.  Cross,  8  Kans.  248. 


CHAPTER  XV. 

DAMAGE  BY  ANIMALS. 

§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  pre- 
vent his  animals  (1)  from  doing  damage  to  B,  if  A  has 
notice  of  their  propensity  to  do  damage,  and  (2)  to  pre- 
vent them  from  straying  from  his  own  upon  B's  premises. 

§  2.     Op  Notice  of  Propensity  to  do  Damage. 

Whoever  keeps  an  animal  with  notice  that  it  has  a  pro- 
pensity to  do  damage  is  liable  to  any  person  who,  without 
fault  of  his  own  legally  contributing  ^  to  the  injury,  suffers 
an  injury  from  such  animal ;  and  this,  though  the  keeper 
be  not  guilty  of  negligence  in  regard  to  keeping  it  prop- 
erly or  securely.  The  gist  of  liability  for  the  damage 
is  the  keeping  of  the  animal  after  notice  of  the  evil  pro- 
pensity. For  example  :  The  defendant  has  a  monkey, 
which  he  knows  has  a  propensity  to  bite  people.  The 
plaintiff,  without  fault  of  her  own,  is  bitten  by  the  animal. 
The  defendant  is  liable,  however  careful  he  may  have 
been  in  keeping  the  moukey.'^ 

1  As  to  this  term,  see  post,  pp.  332  et  seq. 

2  May  V.  Burdett,  9  Q.  B.  101  ;  s.  c.  L.  C.  Torts,  478.  See  Jack- 
son V.  Smithson,  15  M.  &  W.  563  ;  Card  v.  Case,  5  C.  B.  622  ;  Popple- 
well  V.  Pierce,  10  Cush.  509  ;  Oakes  v.  Spaulding,  40  Vt.  347. 


Chap.  XV.  §2.]       DAMAGE  BY  ANIMALS.  273 

If  the  animal  be  ferjB  natur?e,  it  will  (probably)  be  pre- 
sumed that  the  defeudaut  had  notice  of  any  vicious  pro- 
pensity whereby  the  plaintiff  has  suffered  injury,  since  it  is 
according  to  the  nature  of  such  an  animal  to  do  damage.^ 
And  even  if  the  animal  be  domestic,  the  owner  will  be  pre- 
sumed to  have  notice  of  any  propensity  which  is  according 
to  the  nature  of  the  auimal.  For  example  :  The  defend- 
ant's cattle  stray  into  the  plaintift"s  garden,  and  beat  and 
tear  down  the  growing  vegetables.  The  defendant  is  lia- 
ble, though  not  guilty  of  negligence ;  since  it  is  of  the 
nature  of  straying  cattle  to  do  such  damage.^ 

In  the  case  of  injuries  committed  by  domestic  animals 
not  according  to  the  nature  of  such  animals,  it  is  clear  that 
the  owner  is  not  liable  if  he  had  no  notice  that  the  par- 
ticular animal  had  any  evil  propensity.^  For  example  : 
The  defendant's  horse  kicks  the  plaintiff,  neither  the  plain- 
tiff' nor  the  defendant  being  at  fault,  and  the  defendant 
having  no  notice  of  a  propensity  of  the  horse  to  kick. 
The  defendant  is  not  liable  ;  since  it  is  not  of  the  nature 
of  horses  to  kick  people,  when  not  provoked  to  the  act.* 

Statutes  have  been  passed,  declaring  it  unnecessary  in 
an  action  against  the  owner  of  a  dog  to  prove  notice  of  a 
propensity  of  the  animal  to  injure  sheep  or  cattle.  In  the 
absence  of  statute,  however,  the  rule  requiring  notice  of 
the  vicious  propensity  prevails  in  regard  to  dogs  as  well  as 
with  regard  to  other  domestic  animals.^ 

While,  however,  negligence  in  the  owner  of  the  animal 

1  If  a  wild  animal  has  been  tamed  and  domesticated,  the  case  may 
be  diffei-ent.     See  arguments  in  May  v.  Burdett,  supra. 

2  See  Cox  v.  Buibiidge,  13  C.  B.  n.  s.  430,  438,  Williams,  J. 
2  L.  C.  Torts,  490. 

•»  Cox  «..  Burbridge,  supra.  The  plaintiff  was  a  boy  playing  in  the 
highway  at  the  time  of  the  injury,  but  there  was  no  evidence  that  he 
had  done  anything  to  irritate  the  horse. 

6  See  L.  C.  Torts,  490. 

18 


274  LAW  OF  TORTS.  [Part  II. 

is  not  necessary  to  constitute  a  breach  of  duty  when  the 
'  scienter '  can  be  proved,  negligence  in  the  care  of  the 
animal  will  (probably)  render  the  owner  liable,  though 
he  did  not  know  of  the  propensity. 

It  must  at  the  same  time  be  understood  that  the  right  of 
redress  of  the  injured  person  will  be  defeated  if  the  injury 
was  caused  by  his  own  fault.  A  person  who  irritates  an 
animal,  and  is  bitten  or  kicked  in  turn,  is  deemed  to  have 
proximately  caused  the  damage  sustained,  and  so  cannot 
recover.  But  if  the  fault  of  the  injured  party  had  no 
necessary  or  natural  connection  with  the  injury,  operat- 
ing to  produce  the  injury  as  cause  produces  effect,  the 
owner  of  the  animal  will  be  liable.  For  example  :  The 
defendant  keeps  upon  his  premises  a  ferocious  dog,  and 
the  plaintiff,  having  no  notice  that  such  a  dog  is  there, 
trespasses  in  the  day-time  upon  the  premises,  and  the  dog 
rushes  upon  him  and  bites  him.  The  defendant  is  liable  ;  ^ 
since  it  is  not  the  necessary  or  natural  and  usual  conse- 
quence of  a  person's  trespassing  upon  a  man's  premises 
by  day  that  he  should  be  attacked  by  a  savage  dog. 

If,  however,  the  plaintiff  had  notice  that  the  vicious 
animal  was  loose  upon  the  premises,  the  case  would  be 
different,  since  it  would  be  the  natural  and  usual  result  of 
trespassing  upon  the  land  that  the  animal  would  attack 
the  trespasser.  And  if  a  person  were  to  venture  upon 
another's  premises  in  the  country  as  a  trespasser  in  the 
night-time,  it  might  perhaps  be  considered  that  he  had 
entered  with  notice  of  danger,  since  it  is  not  unusual  for 
people  in  the  country  to  keep  watch-dogs  upon  their  lands. 
But,  if  the  trespasser  were  not  engaged  in  mischief  or  rea- 
sonably suspected  of  mischievous  intent,  the  owner  would 
have  no  right  to  set  his  dog  upon  him  before  giving  him 
notice  to  leave  the  premises,  even  if  he  would  after  notice  ; 
for  unnecessary  injury  done  to  a  man  or  even  to  his  beast, 

1  Loomis  V.  Terry,  17  Wend.  496. 


Chap.  XV.  §  3.]       DAMAGE   BY  ANIMALS.  275 

though  trespassing,  cannot  be  justified.^  Necessary  force 
to  resist  the  entry,  or  to  eject  the  trespasser  after  his 
wrongful  entry,  is  the  utmost  which,  the  law  allows  the 
owner  or  occupant  of  the  premises.'* 

§  3.     Of  Escape  of  Animals. 

By  the  common  law  of  England  and  of  most  of  our 
States  the  owner  of  land  is  bound  to  keep  it  fenced  ;  and 
if  his  animals  escape  and  get  into  his  neighbor's  prem- 
ises, he  is  liable  for  the  very  act  as  for  trespass,^  whether 
the  escape  was  owing  to  his  negligence  or  not.*  The 
same  is  true  indeed  though  the  defendant's  animals  may 
not  have  escaped  from  his  enclosure  ;  if  still  an  animal 
commit  damage,  by  putting  part  of  its  body  over,  through, 
or  beyond  the  boundary  line,  the  defendant  will  be  liable 
regardless  of  negligence.  For  example  :  The  defendant's 
horse  bites  and  kicks  the  plaintiff's  horse  through  the 
partition  fence  between  the  plaintiff's  and  defendant's 
premises.  The  defendant  is  liable,  though  not  guilty  of 
negligence.'' 

1  See  Loomis  v.  Terry,  supra.  Trespassing  animals  should  not  be 
injured  unnecessarily.     See  ante,  p.  202. 

2  This  would  be  another  way  also  of  explaining  the  right  of  the 
trespasser  to  recover  when,  having  entered  without  notice,  he  i.s 
attacked  and  bitten  by  the  dog  without  the  direct  command  of  the 
owner.  Comp.  the  cases  of  injury  by  spring-guns.  Bird  v.  Holbrook, 
4  Bing.  628  ;  Ilott  v.  Wilkes,  3  B.  &  Aid.  304  ;  Wootton  v.  Dawkins, 
2  C.  B.  N.  s.  412. 

3  Ellis  V.  Loftus  Iron  Co.  L.  R.  10  C.  P.  10,  13  ;  Lee  v.  Riley,  18 
C.  B.  N.  s.  722.  As  to  dogs  see  Read  v.  Edwards,  17  C.  B.  n.  s.  245. 
Further,  see  Pollock,  Torts,  432,  433,  2(1  ed. 

Secus  of  escape  from  highway  along  which  cattle  are  being  lawfully 
driven,  and  from  which  they  stray.  In  .such  cases  liability  turns  upon 
negligence.  Cxoodwin  v.  Cheveley,  4  H.  &  N.  631 ;  Tillett  v.  Ward, 
10  Q.  B.  D.  17,  where  an  ox  strayed  into  a  shop. 

*  Myers  v.  Dodd,  9  Ind.  290  ;  Webber  v.  Closson,  35  Maine,  26. 

*  Ellis  V.  Loftus  Iron  Co.  supra. 


276  LAW  OF  TORTS.  [Part  II. 

The  common-law  rule,  however,  has  been  variously 
modified  by  statute  in  this  country  ;  and  in  some  of  the 
Western  States  it  is  held  inapplicable  to  the  condition  of 
things.^ 

1  3  Kent,  438,  note  1,  13th  ed.  ;  Kerwhacker  v.  Cleveland  R.  Co.  3 
Ohio  St.  172. 


CHAPTER  XVI. 
ESCAPE  OF  DANGEROUS  THINGS. 

§  1.     Introductory. 

Statement  of  the  duty.  A  owes  to  B  the  duty  to  pre- 
vent the  escape  of  any  dangerous  thing,  to  the  damage  of 
B,  brought  or  made  upon  the  premises  of  A  ;  the  escape 
being  due  to  defects  within  the  control,  though  it  may  be 
not  within  the  knowledge,  of  A. 

§  2.     Op  the  Nature  of  the  Protection  required. 

The  duty  considered  in  the  preceding  chapter  of  re- 
straining animals  from  doing  damage  has  been  treated  in 
England  as  furnishing  ground  for  an  analogous  duty  with 
reference  to  inanimate  things  of  a  peculiarly  dangerous 
character,  which  the  occupant  of  premises  has  brought  or 
made  thereon,  —  the  duty,  to  wit,  so  to  keep  such  things 
that  they  shall  not  do  mischief  to  the  occupant's  neigh- 
bor ;  within  limitations  now  to  be  stated. 

In  the  language,  substantially,  of  judicial  authority, 
where  the  owner  of  land,  without  wilful  wrong  or  negli- 
gence, uses  his  land  in  the  ordinary  manner,  he  will  not  be 
liable  in  damages,  though  mischief  should  thereby  be  occa- 
sioned to  his  neighbor.^  But  a  person  who,  for  his  own 
purposes,  brings  on  his  land,  and  collects  and  keeps  there, 
anything  likely  to  do  mischief  if  it  escapes,  must  keep  it 

1  Chasemore  v.  Richards,  7  H.  L.  Cas.  349. 


278  LAW  OF  TORTS.  [Part  II. 

there  at  his  peril ;  and  if  he  does  not,  he  will  be  answer- 
able, prima  facie,  for  all  the  damage  which  is  the  natural 
consequence  of  its  escape  ;  and  this  however  careful  he 
may  have  been,  and  whatever  precautions  he  may  have 
taken  to  prevent  the  damage.^  For  example  :  The  defend- 
ants construct  a  reservoir  on  land  separated  from  the 
plaintiff's  colliery  by  intervening  land.  Mines  under  the 
site  of  the  reservoir,  and  under  part  of  the  intervening 
land,  have  been  formerly  worked  ;  and  the  plaintiff  has, 
by  workings  lawfully  made  in  his  own  colliery  and  in  the 
intervening  land,  opened  an  underground  communication 
between  his  own  colliery  and  the  old  workings  under  the 
reservoir.  It  has  not  been  known  to  the  defendants,  or 
to  any  person  employed  by  them  in  the  construction  of  the 
reservoir,  that  such  communication  exists,  or  that  there 
have  been  any  old  workings  under  the  site  of  the  reser- 
voir ;  and  the  defendants  have  not  been  personally  guilty 
of  any  negligence.  The  reservoir  is  in  fact,  but  without 
the  defendants'  knowledge,  constructed  over  five  old 
shafts,  filled  with  rubbish  and  other  loose  material,  and 
leading  down  to  the  workings  ;  and  the  reservoir  having 
been  filled  with  water,  the  water  bursts  down  these  shafts 
and  flows  by  the  underground  channel  into  the  plaintiff's 
mines,  producing  damage.     The  defendants  are  liable.^ 

1  Rylands  v.  Fletcher,  L.  R.  1  Ex.  265,  Ex.  Ch. ;  L.  R.  3 
H.  L.  330.  The  decision  of  the  Court  of  Exchequer  (3  H.  &  C.  774) 
was  reversed. 

2  Rylands  v.  Fletcher,  supra.  The  general  rule  above  stated  has 
been  the  subject  of  great  discussion  on  both  sides  of  the  Atlantic,  since 
Rylands  v.  Fletcher  was  decided.  It  has  been  denied  by  some  of  the 
American  courts,  and  adopted  or  favored  by  others.  It  is  denied  e.g. 
by  Losee  v.  Buchanan,  51  N.  Y.  476  ;  it  is  favored  e.  g.  by  Shipley  v. 
Fifty  Associates,  106  Mass.  194.  See  further  L.  C.  Torts,  497-500. 
And  some  tendency  to  modify  it  has  been  shown  in  England,  but  that 
is  as  much  as  can  be  said.  In  substance  the  rule  stands.  See  Pollock, 
Torts,  424-428,  2d  ed.      '  The  authority  of  Rylands  v.   Fletcher  is  un- 


Chap.  XVI.  §  2.]  ESCAPE  OF  DANGEROUS  THINGS.         279 

The  owners  of  the  upper  tenement  heave,  however,  as  has 
already  been  intimated,  in  such  eases,  a  right  to  work 
their  premises  in  the  ordinary,  reasonable,  and  proper 
manner,  and  are  not  liable  for  the  effects  of  water  which 
flows  down  into  the  lower  tenement  by  mere  force  of 
gravitation.  But  where  some  unusual  and  extraordinary 
effort  is  put  forth  for  effecting  the  occupant's  purpose, 
the  owner  is  liable  for  the  injurious  results  which  follow.^ 
For  example  :  The  defendant,  owner  of  a  coal-mine  above 
the  plaintiff's  mine,  works  out  the  whole  of  his  coal,  leav- 
ing no  barrier  between  his  mine  and  the  plaintiff's,  the  con- 
sequence of  which  is,  that  the  water  percolating  through 
the  upper  mine  flows  into  the  lower  one,  and  obstructs  the 
plaintiff  in  getting  out  his  coal.  This  is  no  breach  of  duty 
by  the  defendant ;  the  water  having  flowed  down  in  its 
natural  course,  and  the  defendant  being  entitled  to  re- 
move all  of  his  coal.^  Again  :  The  defendant,  under  the 
like  circumstances,  does  not  merely  suffer  the  water  to 
flow  through  his  mine  in  its  natural  way,  but,  in  order  to 
work  his  mine  beneficially,  pumps  up  quantities  of  water 
which  pass  into  the  plaintiff's  mine,  in  addition  to  that 
which  would  naturally  have  reached  it,  whereby  the  plain- 
tiff suffers  damage.  This  is  a  breach  of  duty  to  the  plain- 
tiff, though  it  is  done  without  negligence,  and  in  the  due 
working  of  the  defendant's  mine.' 

If  the  damage  be  produced  by  vis  major  or  by  the 
act  of  God,*  or  otherwise,  without  the  intervention  of  acts 

questioned,  but  Nichols  v.  Marsland  [L.  R.  10  Ex.  255,  2  Ex.  Div.  IJ, 
has  practically  empowered  juries  to  mitigate  the  rule,  whenever  its 
operation  seems  too  harsh.'     Id.  p.  428,  2d  ed. 

1  Id.  ;  Fletcher  v.  Smith,  2  App.  Gas.  781  ;  Baird  v.  Williamson, 
15  C.  B.  N.  s.  376. 

2  Smith  V.  Kenrick,  7  C.  B.  515,  564. 
^  Baird  v.  Williiujison,  supra. 

*  Nichols  V.  Marsland,  L.  R.  10  Ex.  255  ;  s.  c.  2  Ex.  Div.  1,  show- 


280  LAW   OF  TORTS.  [Part  H. 

or  omission  of  duty  by  the  occupant  or  tliose  for  whom  he 
is  responsible,  the  ease  will  be  different.  In  the  example 
given,  if  the  damage  had  been  caused  by  lightning  burst- 
ing the  reservoir,^  and  not  by  reason  of  the  existence  of 
the  openings  into  the  lower  mines,  the  defendants  would 
not  have  been  liable.  Again  :  The  defendant's  tenants, 
the  plaintiffs,  occupy  the  lower  story  of  a  warehouse,  of 
which  the  defendant  occupies  the  upper.  A  hole  has  been 
gnawed  by  rats  through  a  box  into  which  water  from  the 
gutters  of  the  building  is  collected,  to  be  thence  discharged 
by  a  pipe  into  the  drains.  The  water,  now  pouring  through 
the  hole,  runs  down  and  wets  the  plaintiff's  goods.  The 
defendant  is  not  liable.^  Again  :  The  defendant  owns 
premises  on  which  stand  yew-trees,  which  to  his  knowl- 
edge are  poisonous.  A  third  person  clips  some  of  the 
branches,  which  fall  upon  the  plaintiff's  land,  and  poison 
the  latter's  horses.     The  defendant  is  not  liable.^ 

If,  too,  the  bringing  the  dangerous  thing  upon  the 
occupant's  land,  and  all  the  works  connected  therewith,  be 
effected  under  sanction  of  legislative  authority,  the  fact 
that  they  result  in  damage  to  the  party's  neighbor  by 
purely  natural  escape  or  by  authorized  channels,  and  not 
by  reason  of  negligence  attributable  to  the  occupant,  will 
not  render  the  occupant  liable.*  It  is  also  certain,  a  for- 
tiori, in  such  a  case,  that,  if  the  escape  be  caused  by  the 
act  of  God,  no  liability  follows.  For  example  :  The  de- 
fendant is  charged  by  law  with  the  duty  of  maintaining 

Ing  that  this  term  includes  events  which  human  foresight  could  not 
reasonably  anticipate.     This  case  in  both  stages  is  very  instructive. 

1  Rylands  v.  Fletcher,  L.  R>  3  H.  L.  330. 

2  Carstairs  v.  Taylor,  L.  R.  6  Ex.  217  ;  Ross  v.  Fedden,  L.  R.  7  Q. 
B.  661.  See  Doupe  v.  Genin,  45  N.  Y.  119.  But  see  Marshall  v. 
Cohen,  44  Ga.  489. 

8  Wilson  V.  Newberry,  L.  R.  7  Q.  B.  31. 

4  See  Vaughan  v.  Taff  Vale  Ry.  Co.,  5  H.  &  N.  679. 


Chap.  XVI.  §  2.]    ESCAPE  OF  DANGEROUS  THINGS.        281 

water  tanks  in  his  district  for  purposes  of  irrigation,  as 
part  of  a  national  S3'stem  of  irrigation,  for  the  welfare  of 
the  people.  By  reason  of  an  extraordinary  flood,  and  not 
by  reason  of  the  bad  condition  of  the  works,  one  of  these 
tanks  gives  way,  causing  damage  to  the  plaintiffs.  The 
plaintiffs  cannot  recover  therefor.-' 

On  the  other  hand,  if  the  works  be  of  a  nature  to  require 
legislative  sanction,  the  proprietor  or  manager,  when  not 
having  it,  will  be  liable  for  damage  produced  by  any  escape 
or  breaking  thereof,  however  occurring.  For  example  : 
The  defendants  make  use  of  locomotive  engines,  without 
having  obtained  the  necessary  authority  of  law,  and  the 
plaintiff  suffers  damage  by  reason  of  fire  proceeding  from 
the  same.  The  defendants  are  liable,  though  not  guilty 
of  any  negligence  in  the  management  of  the  engines,  and 
though  they  would  not  have  been  liable  had  they  had  the 
proper  authority.^ 

The  foregoing  is  in  the  main  the  law  of  England.  The 
American  law  can  hardly  be  said  to  have  as  yet  become 
settled  in  regard  to  this  subject.  The  chapter  will  be 
concluded  with  a  statement  of  some  of  the  special  doc- 
trines laid  down  by  our  courts. 

It  has  been  decided  that  the  occupant  of  premises  may 
be  liable  for  damage  caused  by  the  fall  of  ice  or  snow 
from  the  roof  of  his  buildmg  when  the  roof  is  so  con- 
structed as  to  make  it  substantially  certain  that,  if  the 
snow  be  not  removed,  accidents  from  snow-slides  will 
occur ;  although  the  roof  be  constructed  in  the  usual 
manner  of  the  time.^  And  with  regard  to  water  collected 
in  reservoirs,  it  is  held  that  the  embankments  must  be  so 

1  Madras  Ry.  Co.  v.  The  Zemindar,  L.  R.  1  Ind.  App.  364. 
'^  Jones  V.  Festiniog  Ry.  Co.,  L.  R.  3  Q.  B.  733  ;  Vaaghan  v.  Taff 
Vale  Ry.  Co.,  supra. 

3  Shipley  v.  Fifty  Associates,  106  Mass.  194. 


282  LAW  OF  TORTS.  [Part  II. 

thoroughly  constructed  that  the  water  cannot  percolate 
through  them.^ 

The  doctrine  has  also  been  laid  down  that  where  the 
alleged  rights  of  adjoining  land-owners  conflict,  it  is  better 
that  one  of  them  should  yield  to  the  other  and  forego  a 
particular  use  of  his  land,  rather  than  by  insisting  upon 
that  use,  deprive  the  other  altogether  of  the  use  of  his 
property  ;  which  might  often  be  the  consequence  of  carry- 
ing on  the  operation.  This  would,  of  course,  be  an  obvi- 
ous principle  if  stated  with  regard  to  a  nuisance  ;  but  it  is 
treated  as  applicable  to  other  wrongs  as  well.  For  exam- 
ple :  The  defendants,  in  the  course  of  digging  a  canal 
through  theu-  land,  for  which  purpose  they  are  clothed 
with  legislative  authority,^  find  it  necessary  to  blast  rocks 
by  the  use  of  gunpowder.  The  result  of  the  blasting  is 
to  throw  fragments  of  rock  against  the  plaintiff's  house, 
whereby  the  plaintiff  suffers  damage.  Tlie  defendants  are 
deemed  liable,  though  not  guilty  of  negligence.^ 

A  distinction  has,  however,  been  observed  to  exist  be- 
tween an  injury  sustained  in  that  way,  and  one  sustained 
by  the  explosion  of  a  boiler  on  the  defendant's  premises. 
For  damage  sustained  in  the  latter  way,  it  is  deemed  that 
no  right  of  action  arises  unless  the  explosion  was  due  to 
negligence  of  the  manager.*  The  use  of  a  boiler  is  not 
necessarily  dangerous.^ 

1  Wilson  V.  New  Bedford,  108  Mass.  261  ;  Pixley  v.  Clark,  35  N.  Y. 
520. 

2  The  work  could  not  therefore  be  a  nuisance  when  carefully- 
conducted. 

8  Hay  V.  Cohoes  Co.,  2  N.  Y.  159. 

*  Losee  v.  Buchanan,  51  N.  Y.  476.  In  this  case  the  rule  in  Ry- 
lands  V.  Fletcher,  supra,  is  denied. 

5  Further,  see  Cooley,  Torts,  677,  680,  2d  ed.  ;  L.  C.  Torts,  496  et 
seq. 


PART  III. 

BREACH  OF  DUTY  TO  REFRAIN  FROM 
NEGLIGENCE. 


CHAPTER  XVII. 

NEGLIGENCE. 
§  1.     Introductory. 

Statement  of  the  dutij.  A  owes  to  B  the  duty  to  forbear 
to  inflict  damage  upon  him  by  acts  or  omissions  not  in 
conformity  with  the  conduct  of  a  prudent  or  careful  or 
diligent  man,  though  damage  be  not  intended. 

This  statement  is  intended  to  cover  all  torts  into  which 
negligence  may  enter  as  chief  element.  It  should  be 
noticed  that  negligence  alone  is  not  a  cause  of  action 
any  more  than  is  fraud  or  malice  ;  it  is  only  an  element 
of  liability,  though  it  is  now  the  chief  element.^  The 
specific  torts  in  which  negligence  plays  the  chief  part 
are  mostly,  it  may  be  added,  innominate. 

§  2.     Of  the  Legal  Conception  of  Negligence. 

The  term  '  negligence '  as  used  in  the  law  includes  want 
of  care,  rashness,  and  thoughtlessness.^     The  law,  how- 

1  The  negligent  defendant  must  have  owed  a  duty  to  the  plaintiff ; 
negligence,  with  damage  added,  is  not  enough.  Membury  v.  Great 
Western  Ky.  Co.,  14  App.  Cas.  179,  190. 

2  Where  negligence  consists  in  want  of  care,  danger  is  adverted  to, 
but  no  proper  attempt  is  made  to  exert  the  will  to  avoid  harm  ;  where 
it  consists  in  rashness,  danger  again  is  adverted  to,  but  no  proper  at- 
tempt is  made  to  restrain  the  impulse  of  undue  confidence  ;  where  it 
consists  in  thoughtlessness,  danger  is  not  adverted  to,  but  this  because 
no  proper  attempt  has  been  made  to  take  notice  of  the  situation,  the 


286  LAW  OF  TORTS.  [Part  III. 

ever,  regards  mainly,  if  not  entirely,  the  manifestation  as 
distinguished  from  tlie  mental  attitude  out  of  which  the 
legal  conception  of  negligence  arises,  as  it  does  in  cases  of 
fraud  and  perhaps  malice  ;  but  it  will  be  instructive  to 
observe  that,  looking  at  the  obverse  side  or  mental  aspect 
of  the  subject,  negligence  consists  in  omission,  — omission 
e.g.  to  summon  the  will  to  right  action  in  the  particular 
case.  It  is  in  that,  in  reality,  that  negligence  consists  ; 
while  the  outward  aspect  or  manifestation  which  the  law 
looks  to  may  obviously  be  either  an  act  or  an  omission. 

Liability  ex  delicto  for  the  consequences  of  negligence 
as  regarded  by  the  law,  arises,  however,  by  reason  only  of 
acts,  or  omissions  after  the  doing  of  acts.  In  respect  of 
omissions  not  preceded  at  any  time  by  overt  acts,  either 
by  the  defendant  or  by  his  predecessors  in  interest,  in 
connection  with  that  which  occasions  the  damage,  there 
may  indeed  be  liability  ex  contractu  (the  omission  being 
a  breach  of  contract)  ;  there  can  be  no  liability  in  tort  as 
for  negligence.  An  innkeeper  may  be  liable  for  refusing 
to  receive  a  man  as  guest  into  his  inn  ;  but  the  liability 
incurred  cannot  properly  be  treated  as  growing  out  of 
negligence.  Refusal  to  do  a  duty  is  one  thing  ;  negligence 
is  another. 

There  can  arise  indeed  no  civil  liability  for  the  negli- 
gent omission  to  do  a  thing  required  by  law,  though 
commanded  by  the  Legislature,  unless  that  neglect  be  con- 
nected with  the  existence  of  something  already  done.  A 
town  may  be  required  to  build  a  bridge  across  a  stream, 
but  no  one  can  maintain  an  action  for  damages  against  the 
town  for  neglect,  however  inexcusable,  to  build  the  bridge  ; 
though  an  action  miglit  be  maintained  for  damage  caused 
by  the  breaking  of  a  bridge  through  failure  to  repair  it  if 

case  being  negligent  not  knowing.  Even  '  wilful  default '  so-called, 
may,  it  seems,  be  negligence  of  this  last  kind.  There  may  be  other 
shades  of  negligence,  but  these  are  certainly  the  chief  ones. 


Chap.  XVII.  §  2.]  NEGLIGENCE.  287 

the  town  was  bound  to  keep  it  in  proper  condition.  In 
the  latter  case,  there  is  an  omission  preceded  (at  some  time) 
by  an  overt  act ;  to  wit,  the  building  of  the  bridge.  When 
it  is  said  that  no  action  ex  delicto  can  be  maintained  for  a 
pure  non-feasance,  consisting  in  neglect  of  duty,  the  for- 
mer case  is  to  be  understood  as  intended. 

It  is  declared  by  all  the  authorities  that  the  standard  by 
which  to  determine  whether  a  person  has  been  guilty  of 
negligence  is  the  conduct  of  the  prudent,  careful,  diligent, 
or  skilful  man  in  the  particular  situation.  But,  if  not 
properly  understood,  this  standai'd  may  itself  be  mislead- 
ing. A  blacksmith  finds  a  watch  by  the  roadside,  and  on 
opening  it  and  seeing  that  it  is  full  of  dirt,  attempts  to 
clean  it,  when  a  watchmaker  is  near ;  but  in  doing  so, 
though  exercising,  it  may  be,  the  greatest  care,  he  in- 
jures it  by  reason  of  his  lack  of  skill.  Now  in  attempting 
to  put  the  watch  in  order,  and  thus  perhaps  preventing  its 
ruin,  he  has  done  nothing  that  a  prudent  man  might  not 
have  done  ;  and,  taking  the  criterion  in  its  broadest  sense, 
the  blacksmith  could  not  be  liable  to  the  owner  of  the 
watch  for  the  damage  which  he  did  to  it ;  while  the  law 
would  probably  be  just  the  contrary.^ 

A  prudent  blacksniith,  however,  would  not  have  under- 
taken to  put  the  watch  in  order ;  he  would  have  taken  it 
to  the  watchmaker.  The  prudent  man,  ordinarily,  with 
regard  to  undertaking  an  act,  is  the  man  who  has  acquired 
the  skill  to  do  the  act  which  he  undertakes  ;  a  man  who 
has  not  acquired  that  special  skill  is  imprudent  in  under- 
taking to  do  the  act,  however  careful  he  may  be,  and 
however  great  his  skill  in  other  things.^ 

The  criterion  then  of  the  conduct  of  the  prudent  or  care- 

1  It  is  to  be  noticed  that  as  a  watchmaker  is  near,  the  act  could  not 
be  considered  one  of  necessity. 

2  See  Dean  v.  Keate.  3  Campb.  4  ;  post,  p.  289. 


288  LAW   OF   TORTS.  [Part  III. 

ful  or  diligent  man  in  the  undertaking  of  an  act  is  to  be 
understood  with  the  limits  suggested.  The  question  to  be 
raised  with  regard  to  a  man's  conduct  brought  in  question 
in  such  a  case  is,  whether  a  prudent  or  careful  or  diligent 
man  of  his  calling  or  business  or  skill  would  have  under- 
taken to  do  the  thing  in  question  ;  supposing  the  party  to 
have  exercised  due  care  in  executing  the  work  undertaken. 

When  an  act  has  been  undertaken  by  a  person  whose 
business  or  profession  covers  the  doing  of  acts  of  the  kind 
in  question,  the  question  to  be  decided  is,  whether  that 
skill  or  care  or  diligence  has  been  exercised  which  a  pru- 
dent man  of  the  same  business  would  have  exercised  in 
the  same  situation. 

In  regard  to  omissions  (after  overt  acts)  to  perform  acts 
not  distinctly  and  certainly  required  by  law,  the  question 
of  the  duty  to  perform  them  is  to  be  decided  by  the  gen- 
eral practice  of  prudent  or  careful  or  diligent  men  of  the 
same  occupation,  when  such  a  practice  exists.  When  no 
such  practice  exists,  the  question  is  decided  upon  the  rea- 
sonably supposable  conduct  of  the  prudent  man  acting 
under  the  circumstances.^ 

A  remark  should  be  made  upon  the  question  whether 
the  conclusion  or  inference  to  be  drawn  from  the  facts  in 
the  case  of  an  action  for  negligence  is  a  matter  of  law  or 
of  fact.  The  authorities  do  not  give  any  categorical  an- 
swer to  the  question,  but  this  appears  to  be  the  effect  of 
them  :  Where  the  facts  are  found,  and  it  is  manifest  that 
a  prudent  man  would  or  would  not  act  or  omit  to  act  as 
the  defendant  has  done,  the  conclusion  or  inference  may  be 
considered  as  matter  of  law.  The  same  is  also  true  where 
the  law  has  prescribed,  as  in  some  cases  it  has,  the  nature 

1  See  Dixon  v.  Bell,  5  Maule  &  S.  198  ;  s.  c.  L.  C.  Torts,  568  ; 
Piggott,  Torts,  220,  where  the  authorities  are  well  stated. 


Chap.  XVII.  §  2.]  NEGLIGENCE.  289 

of  the  duty,  and  also  where  there  exists  a  well-known 
practice  in  the  community,  of  a  proper  character.  In  other 
cases,  and  these  are  far  more  numerous,  it  is  a  matter  of 
fact.i 

It  should  further  be  stated  that  a  very  large  part  of  the 
litigation  pertaining  to  suits  for  negligence  turns  upon  the 
question  whether  the  facts  submitted  to  the  court  make  a 
case  which  may  be  submitted  to  the  jury,  in  jury  trials,  as 
furnishing  evidence  upon  which  negligence  may  properly 
be  found.  To  consider  such  questions  would  require  a 
detailed  examination  of  the  authorities  beyond  the  purpose 
of  this  book. 

It  remains  to  consider  the  specific  cases  under  which 
liability  for  negligence  may  arise  ;  and  these  may  be 
classed  under  two  general  heads,  to  wit,  negligence  in 
contract,  and  negligence  not  in  contract.  For  it  is  to  be 
understood,  with  regard  to  relations  such  as  those  about 
to  be  mentioned,  that  the  negligent  performance  of  a  con- 
tract, or  the  unexcused  neglect  to  perform  a  contract,  is  a 
breach  of  duty  that  may  be  treated  as  involving  liability 
ex  delicto  or  ex  contractu,  at  the  election  of  the  injured 
party.^ 

Under  the  first  head,  it  will  be  proper  to  consider  the 
subjects  of  Innkeeper  and  Guest,  Bailor  and  Bailee,  Pro- 
fessional Services,  and  the  duties  of  Telegraph  Compan- 
ies, Agents,  Servants,  Trustees,  and  the  like  ;  and,  under 
the  second  head.  Public  Bodies  and  Public  Officers,  and 
the  Use  of  Premises.  These,  though  by  no  means  all  the 
subjects  in  which  the  law  of  negligence  might  be  instruct- 

1  See  L.  C.  Torts,  589-596. 

2  Marzetti  v.  Williams,  1  B.  &  Ad.  415  ;  Browu  v.  Boorman,  11 
Clark  &  F.  1  ;  s.  c.  3  Q.  B.  511  ;  Robinson  v.  Threadgill,  13  Ired.  39. 
These  cases  appear  to  go  to  the  extent  of  allowing  suit  ex  delicto,  even 
when  there  has  been  no  attempt  to  perform  the  contract. 

19 


290  LAW   OF   TORTS.  [Part  III 

ively  considered,  will  still  serve  to  create  a  clear  concep- 
tion of  the  subject  as  an  element  of  liability. 

§  3.     Of  Innkeeper  and  Guest. 

With  regard  to  the  duties  of  innkeepers,  it  will  be  al- 
most sufficient  in  the  present  connection  to  say  that, 
though  it  has  sometimes  been  considered  that  for  loss  or 
damage  to  the  goods  of  guests  liability  depends  upon  the 
question  of  negligence  in  the  host,  or  in  his  servants  act- 
ing for  him/  it  is  now  more  generally  considered  that  an 
innkeeper's  liability  for  the  failure  to  keep  the  goods  of 
his  guest  safely,  when  once  delivered  into  the  former's 
custody,  arises  independently  of  the  question  of  negli- 
gence. The  host  is  now  held  liable  for  damage  to  or  loss 
of  the  goods  put  in  his  custody,  though  he  exercise  the 
greatest  diligence  in  the  care  of  them,  unless  the  losp 
occur  by  the  guest's  negligence,  or  by  vis  major,  inevit- 
able accident,  or  the  act  of  God.^ 

It  follows,  a  fortiori,  that  the  innkeeper  is  liable  in  case 
of  loss  sustained  by  reason  of  his  own  negligence,  or  that 
of  his  servants  ;  but,  inasmuch  as  the  question  of  his  lia- 
bility does  not  turn  upon  the  proof  of  negligence  in  the 
ordinary  sense,  the  subject  need  not  be  here  pursued. 

1  Dawson  v.  Chamney,  5  Q.  B.  164  ;  Merritt  v.  Claghora,  23  Vt. 
177  ;  Metcalf  y.  Hess,  14  111.  129. 

2  Armistead  v.  Wilde,  17  Q.  B.  261  ;  Cashill  v.  Wright,  6  El.  &  B. 
891  ;  Morgan  r.  Eave3%  6  H.  &  N.  265  ;  Oppenheim  v.  White  Lion 
Hotel  Co.,  L.  R.  6  C.  P.  .515  :  Shaw  v.  Berry,  31  Maine,  478  ;  Norcross 
V.  Norcross,  53  Maine,  163 ;  Sibley  v.  Aldrich,  33  N.  H.  553  ;  Manning 
V.  Wells,  9  Humph.  746  ;  Thickstun  v.  Howard,  8  Blackf.  535  ;  Berk- 
shire Woollen  Co.  v.  Proctor,  7  Cnsh.  417  ;  Cohen  v.  Frost,  2  Duer, 
341  ;  Piper  v.  Manny,  21  Wend.  282  ;  Hulett  v  Swift,  33  N.  Y.  571  ; 
Wilkins  v.  Earle,  44  N  Y.  172  ;  Houser  v.  Tully,  62  Penn.  St.  92; 
Rockwell  V.  Proctor,  39  Ga.  105.  But  this  subject  is  much  regulated 
by  statute. 


Chap.  XVII.  §  4.]  NEGLIGENCE.  291 

It  is  proper,  however,  to  mark  the  fact  in  this  connec- 
tion that  a  question  of  contributory  negligence  ^  may  arise 
in  considering  cases  of  innkeeper  and  guest,  as  well  as  in 
other  cases.  If  the  negligence  of  the  guest  occasion  the 
loss  in  such  a  way  that  it  would  not  have  happened  if  the 
guest  had  exercised  the  usual  care  that  a  prudent  man 
might  reasonably  be  expected  to  have  taken  under  the 
cu'cumstances,  the  innkeeper  is  not  liable.^ 

§  4.     Of  Bailor  and  Bailee. 

So  much  of  the  subject  of  bailment  as  relates  to 
breaches  of  duty  by  common  carriers  may  be  dismissed 
with  a  brief  word.  The  liability  of  a  common  carrier  is 
similar  to  that  of  an  innkeeper,  and  does  not  turn  upon  the 
question  of  negligence,  the  subject  of  the  present  chapter. 
And  there  are  other  cases  in  which  the  bailor  of  an 
article  for  special  use,  as  a  '  job-master '  of  carriages, 
while  not  for  all  purposes  an  insurer,  is  still  liable,  at 
least  in  England,  for  loss  happening  without  negligence 
in  the  ordinary  sense.^  These  too  fall  without  the  present 
subject. 

It  was  long  considered  a  settled  doctrine  of  the  English 
law  that  the  duty  of  bailees  was  to  be  distributed  under 
three  heads,  having  reference  respectively  to  the  nature  of 
the  bailment;  to  wit,  (1)  the  duty  to  observe  very  great 
care,  (2)  the  duty  to  observe  ordinary  care,  and  (3)  the 
duty  to  observe  slight  care  only.     Conversely,  therefore, 

1  Post,  §  10. 

2  Cashill  V.  Wright,  6  El.  &  B.  891  ;  Oppenheim  v.  White  Lion 
Hotel  Co.,  L.  R.  6  C.  P.  515. 

3  See  e,  g.  Hyman  v.  Nye,  6  Q.  B.  D.  685.  The  liability  of  one 
whose  business  is  to  let  carriages  is  here  put  upon  the  footing  of  coach 
proprietors  and  railway  companies.  '  He  is  an  insurer  against  all  de- 
fects which  care  and  skill  can  guard  against.'  Id.  Lindley,  J.  He  is 
not  an  insurer  against  all  defects  absolutely.     Id. 


292  LAW  OF  TORTS.  [Part  III. 

the  bailee  was  deemed  to  be  liable  for  loss  sustained  by 
the  bailor,  under  the  first  head,  if  the  bailee  were  guilty  of 
slight  negligence  ;  under  the  second  head,  if  he  were  guilty 
of  '  ordinary  negligence,'  or  rather  of  negligence  of  an 
intermediate  grade  ;  and,  under  the  third  head,  if  he  were 
guilty  of  gross  negligence.^ 

The  application  of  these  three  degrees  of  negligence 
was  thus  explained  :  If  the  bailment  were  gratuitous,  by 
the  bailor,  that  is,  for  the  sole  benefit  of  the  bailee,  the 
bailee  was  deemed  to  be  liable  for  loss  or  damage  to  the 
subject  of  the  bailment  occasioned  even  by  slight  negli- 
gence on  his  part.  If  the  bailment  were  for  hire,  that  is, 
for  the  mutual  benefit  of  the  bailor  and  the  bailee,  he  was 
deemed  to  be  liable  for  the  consequences  of  negligence  of 
an  intermediate  grade  only.  If  the  bailment  were  with- 
out benefit  to  the  bailee,  that  is,  if  the  bailor  had  requested 
the  bailee  to  take  care  of  his,  the  former's,  goods  without 
reward,  the  bailee  was  deemed  to  be  liable  for  the  result 
of  gross  negligence  only.^ 

This  doctrine  arose  from  a  misconception  apparently  of 
the  Roman  law,  the  doctrines  of  which  were  resorted  to 
in  order  to  assist  in  the  solution  of  a  question  which  arose 
in  England  in  the  eighteenth  century.^  But  it  remained  in 
the  English  law  unchallenged  for  so  long  a  time  that  it 
has  not  been  readily  abandoned,  and  it  may  be  still  con- 
sidered as  retaining  some  faint  vitality  in  England  and  in 
various  parts  of  the  United  States. 

The  tendency  of  authority  for  a  considerable  time  has 
been  to  break  away  from  this  division  of  negligence,  and 
to  accept  substantially  what  seems  to  have  been  the  true 

1  Coggs  V.  Bernard,  2  Ld.  Raym.  909  ;  1  Smith's  L.  C.  188,  7th 
ed.  2  ici. 

^  Coggs  V.  Bernard,  supra.  Lord  Holt  took  his  Roman  law  mainly 
from  the  mediaeval  jurists,  or  glossarists.  Wharton,  Negligence,  §  57  et 
seq.  ;  Smith,  Negligence,  11  et  seq.,  2d  ed. 


Chap.  XVH.  §  4.]  NEGLIGENCE.  293 

doctrine  of  the  Roman  law  in  regard  to  bailments,  as  well 
as  in  relation  to  otiier  subjects  covered  by  the  title  Negli- 
gence. The  effect  is  to  make  the  criterion  of  liability  to 
depend  upon  the  consideration  already  adverted  to, 
whether  the  party  complained  of  conducted  himself  in  the 
particular  situation  as  a  man  of  prudence  or  carefulness 
or  skill,  of  the  same  business,  would  have  conducted  him- 
self, or  as  prudent  or  careful  or  skilful  men,  of  the  same 
business,  generally  do  conduct  themselves  in  the  like 
situation.^ 

This  criterion,  indeed,  will  often  if  not  generally  be 
found  to  be  the  real  test  applied  in  those  cases  in  which 
the  old  terms  are  used.  For  example  :  The  defendant,  a 
bailee  of  money  to  keep  without  reward,  gives  the  follow- 
ing account  of  himself  :  He  was  a  coffee-house  keeper,  and 
had  placed  the  money  in  question  in  his  cash-box  in  the 
tap-it>om,  which  had  a  bar  in  it,  and  was  open  on  Sunday  ; 
and  on  a  Sunday  the  cash-box  was  stolen.  The  defend- 
ant's liability  turns  upon  the  question  whether  he  has  taken 
such  care  of  the  plaintiff's  money  as  a  reasonable  man 
would  ordinarily  take  of  his  own ;  if  not,  he  is  deemed  to 

^  As  indicating  the  tendency  to  discard  the  old  theory  of  the  three 
degrees  of  negligence,  see  Wilson  v.  Brett,  11  M.  &W.  113  ;  Hintoii  v. 
Dibdiri,  2  Q.  B.  646  ;  Grill  v.  General  Collier  Co.,  L.  R.  1  C.  P.  600; 
Beall  V.  South  Devon  Ry.  Co.,  3  H.  &  C.  337  ;  Giblin  v.  McMullen,  L. 
R.  2  P.  C.  317,  328  ;  The  New  World,  16  How.  469  ;  Milwaukee  Ry. 
Co.  V.  Arms,  91  U.  S.  489,  494  :  Cass  v.  Boston  &  L.  R.  Co.,  14  Allen, 
448  ;  Lane  v.  Boston  &  A.  R.  Co.,  112  Mass.  455  ;  Briggs  v.  Taylor, 
28  Vt.  180. 

In  the  Roman  law  there  were  two  branches  (rather  than  degrees)  of 
negligence,  expressed  respectively  by  the  terms  '  culpa  levis '  and 
'  culpa  lata.'  The  former  was  the  absence  of  the  diligence  of  a  good 
man  of  affairs  ('diligentia  boni  patrisfamilias')  ;  the  latter  the  failure 
to  exercise  those  mental  faculties  which  all  men  habitually  exercise 
('non  intelligere  quod  omnes  intelligunt ').  The  two  ideas  together 
answer  pretty  nearly  to  our  prudent,  careful,  diligent,  or  skilful  man 
in  the  particular  situation. 


294  LAW  OF  TOKTS.  [Part  III. 

be  guilty  of  '  gross  negligence '  and  liable  for  the  loss.^ 
Again  :  The  defendants  receive  a  deposit  of  bonds  from 
a  stranger,  S,  to  be  kept  without  reward.  Subsequently 
another  stranger  calls  for  and  gets  the  bonds,  represent- 
ing himself  to  be  S,  the  depositor.  The  judge  instructs 
the  jury  that,  if  the  defendants  are  guilty  of  want  of 
'  ordinary  care '  under  all  the  circumstances,  they  are  lia- 
ble, otherwise  not.  The  instruction  is  correct,  being 
equivalent  to  a  ruling  that  the  defendants  are  liable  for 
gross  negligence  only.^  Again  :  The  defendants  receive 
a  deposit  of  debentures  to  be  kept  without  reward,  and  the 
cashier  of  the  bank  fraudulently  abstracts  the  same  and 
makes  away  with  them.  The  defendants  are  liable  if  they 
have  failed  to  exercise  '  ordinary  care,'  which  means  a 
failure  to  exercise  that  ordinary  diligence  which  a  reason- 
ably prudent  man  takes  of  his  own  property  of  the  like 
description.^ 

The  foregoing  are  examples  of  liability  in  cases  of  bail- 
ment without  reward ;  but  the  same  principles  govern 
bailments  for  hire.  For  example  :  The  defendants,  ware- 
housemen for  hire,  lose  by  theft  the  plaintiff's  property, 
while  the  same  is  in  their  keeping.  They  have  exercised 
the  care  usually  exercised  in  the  vicinity  b}'^  other  like 
warehousemen.  They  are  not  liable,  having  exercised 
'ordinary  care.'*  Again:  The  defendants,  warehouse- 
men in  a  large  city,  receive  from  the  plaintiffs  for  reward 
a  large  quantity  of  salt  in  barrels,  which  they  store  in  a 

1  Doorman  v.  Jenkins,  2  Ad.  &  E.  256.  The  question,  it  will  be 
seen,  was  not  whether  the  defendant  had  taken  the  same  care  of  the 
money  that  he  took  of  his  own. 

2  Lancester  Co.  Bank  v.  Smith,  62  Penn.  St.  47.  See  also  Foster 
V.  Essex  Bank,  17  Mass.  479,  486. 

8  Giblin  v.  McMullen,  L.  R.  2  P.  C.  317  ;  Fulton  v.  Alexander,  21 
Texas,  148. 

*  Cass  V.  Boston  &  L.  R.  Co.,  14  Allen,  448.  See  Lane  v.  Boston  & 
A.  R.  Co.,  112  Mass.  455. 


CiiAP.  XVII.  §  4.]  NEGLIGENCE.  295 

loose  frame  warehouse,  situated  in  an  alley,  back  of  their 
business  house.  Of  the  whole  amount  about  two  hundred 
and  forty  barrels  are  stolen  ;  and  it  is  afterwards  discov- 
ered that  the  theft  was  going  on  at  intervals  for  a  month. 
It  was  effected  by  entering  through  an  opening  in  the  side 
of  the  building,  a  plank  there  being  off,  and  then  opening 
the  alley  door  and  rolling  out  the  ban-els.  Drays  were 
thus  loaded  early  in  the  morning,  sometimes  before  sun- 
rise, sometimes  a  little  after ;  the  defendants  having  no 
watchman  there.  The  defendants  are  liable,  because  they 
failed  to  exercise  '  ordinary  care  or  diligence  ; '  though  it 
appears  to  be  usual  in  the  particular  city  to  pile  such  bar- 
rels in  open  sheds,  or  on  vacant  lots,  or  on  the  sidewalk, 
or  occasionally  in  warehouses  such  as  the  one  in  question, 
—  some  supervision  or  examination  of  the  premises  being 
reasonably  required  in  the  course  of  a  month. ^ 

The  result,  therefore,  is,  that  the  terms  '  gross  negli- 
gence,' and  'negligence,'  are,  with  regard  to  goods  bailed, 
now  used  to  prescribe  liability  where  the  defendant  or  his 
servants  have  not  taken  the  same  care  of  the  property  in- 
trusted to  them  as  a  prudent  man  would  have  taken  of 
his  own  in  the  same  situation.^  Or  as  it  has  recently  been 
laid  down  by  judicial  authority  :  For  all  practical  purposes 
the  rule  may  be  stated  to  be,  that  the  failure  to  exercise 
reasonable  care,  skill,  and  diligence,  is  '  gross  negligence.' 
What  is  reasonable,  varies  in  case  of  a  gratuitous  bailee 
and  that  of  a  bailee  for  hire.  From  the  former  are  rea- 
sonably expected  such  care  and  diligence  as  persons 
ordinarily  use  (that  is,  careful  persons)  in  their  own  affairs, 
and  such  skill  as  the  bailee  has.  From  the  latter  are 
reasonably   expected    such   care   and    diligence    as    are 

1  Chenowith  v.  Dickinson,  8  B.  Mon.  156. 

2  BnVgs  V.  Taylor,  28  Vt.  180.  See  also  Duffy.  Budd,  3  Brod.  & 
B.  177  ;  Riley  v.  Home,  5  Bing.  217  ;  Batson  v.  Donovan,  4  B.  &  Aid- 
21. 


296  LAW   OF  TORTS.  [Part  III 

exercised  in  the  ordinary  and  proper  course  of  similar 
business,  and  sucli  skill  as  the  bailee  ought  to  have  ; 
namely,  the  skill  usual  and  requisite  in  the  business  for 
which  he  receives  payment.^ 

On  the  other  hand  (to  leave  the  side  of  the  bailee's 
duty),  there  may  be  a  case  of  negligence  on  the  part  of 
the  bailor,  resulting  in  harm  to  the  bailee  or  to  others. 
This  may  happen  in  many  ways,  as  in  the  careless  hand- 
ling of  the  goods  by  the  bailor ;  it  may  also  happen  by 
reason  of  the  failure  of  the  bailor  to  give  notice  of  the 
nature  of  the  articles  delivered.  It  is  a  general  principle 
that  wherever  a  person  employs  another  to  carry  an  arti- 
cle which  from  its  dangerous  nature  requires  more  than 
ordinary  care,  he  must  give  reasonable  notice  to  him  of 
the  nature  of  the  article  ;  otherwise  he  will  be  liable  for 
the  natural  consequences  of  the  neglect.^  For  example  : 
The  defendant  delivers  a  carboy  of  nitric  acid  to  the  plain- 
tiff, servant  of  a  Croydon  carrier,  to  be  taken  to  Croydon, 
without  indicating  to  him  the  nature  of  the  article  ;  and 
there  is  nothing  in  its  appearance  to  indicate  its  nature. 
While  he  is  carrying  it,  the  carboy  bursts  from  some 
unexplained  cause,  and  the  plaintiff  is  injured.  The 
defendant  is  liable.^ 

Thus  far  of  a  bailment  for  custody  (locatio  custodiae) ,  or 
for  hire  (locatio  rei),  or  the  like.  The  bailment  may  re- 
quire the  performance  of  services  upon  chattels  (locatio 
operis)  ;  but  the  rule  with  regard  to  diligence  is  still  the 
same.  The  bailee  is  bound  to  exercise  ordinary  care  ;  to 
wit,  the  care  of  a  prudent  man  of  the  same  occupation, 
and  under  the  same  circumstances.     He  is  also  bound  to 

1  Beal  V.  South  Devon  Ry.  Co.,  3  H.  &  C.  337,  Exch.  Oh.,  Cromp- 
ton,  J.  speaking  for  the  court. 

2  Willes,  J.  in  Farrant  v.  Barnes,  11  C.  B.  N.  s.  553,  564. 

8  Farrant  v.  Barnes,  supra.     See  Brass  v.  Maitland,  6  El.  &  B.  470. 


Chap.  XVII.  §  4.]  NEGLIGENCE.  297 

exercise  a  fair  average  degree  of  skill  in  relation  to  the 
business  which  he  undertakes  ;  to  do  his  work  in  a  workman- 
like manner  ;  and  to  be  possessed  of  sufficient  skill  to  exe- 
cute it.  He  will  therefore  be  liable,  prima  facie,  if  he 
should  either  make  an  engagement  without  sufficient  skill 
to  execute  it,  or  if,  possessing  the  adequate  skill,  he 
should  not  exercise  it.  For  example :  The  defendant 
hires  a  horse  of  the  plaintiff  which  becomes  slightly  sick. 
The  defendant,  not  being  a  farrier,  thereupon  prescribes 
improperly  for  the  horse,  and  the  medicine  kills  it.  This 
is  a  breach  of  duty  to  the  plaintiff,  a  farrier  being  near 
at  hand  at  the  time.^  Again  :  The  defendant,  a  builder  of 
houses,  undertakes  for  the  plaintiff  to  rebuild  a  good  and 
substantial  front  to  his  house,  but  he  builds  the  same  so 
out  of  perpendicular  that  it  must  be  taken  down.  The 
defendant  is  liable  in  an  action  for  negligence.^ 

The  degree  of  skill  and  care  required  rises  in  proportion 
to  the  value,  the  delicacy,  and  the  difficulty  of  the  opera- 
tion. A  workman  employed  to  repair  the  works  of  a  very 
delicate  instrument  would  be  expected  to  exert  more  care 
and  skill  than  would  be  required  about  an  ordinary  under- 
taking.*^  The  criterion  of  liability,  however,  still  remains 
the  same  ,•  if  all  things  are  done  by  the  workman  which  a 
careful  and  skilful  workman  in  the  same  situation  and 
business  would  do,  he  will  be  exonerated  from  liability 
though  he  brake  the  instrument.^ 

It  should  be  observed,  however,  with  regard  to  cases 
requiring  the  exercise  of  skill,  that  a  bailee  is  not  to  be 
required  to  possess  extraordinary  skill,  such  as  is  possessed 
by  but  few  persons  only  in  the  particular  business,  but 
only  a  fair  average,  or  ordinary,  degree  of  skill ;  unless, 
indeed,  he  engage  to  possess  extraordinary  ability.     In 

1  Dean  v.  Keate,  3  Campb.  4. 

2  Farnsworth  v.  Garrard,  1  Campb.  38. 

3  Story,  Bailments,  §  432.  <  Id. 


298  LAW  OF   TOKTS.  [Part  III. 

the  absence  of  agreement  or  false  representation,  reason- 
able skill  constitutes  the  measure  of  the  engagement  of 
the  workman  in  regard  to  the  thing  undertaken.^ 

On  the  other  hand,  a  bailee  employed  to  do  work  un- 
familiar to  him  is  not  liable,  it  seems,  for  failing  to  pos- 
sess the  requisite  skill  for  the  work,  if  he  has  not  held 
himself  out  as  possessing  such  skill.  It  is  the  bailor's 
fault  if  he  intrust  a  work  requiring  the  exercise  of  skill  to 
one  whom  he  knows  to  be  without  it.  For  example  :  The 
defendant,  a  matter,  is  employed  by  the  plaintiff,  with 
notice,  to  embroider  a  fine  carpet,  and  the  defendant,  from 
want  of  skill,  spoils  the  materials  put  into  his  hands  by 
the  plaintiff  for  the  purpose.  This  is  no  breach  of  duty, 
the  defendant  not  having  represented  himself  competent 
for  such  work.'^ 

It  is  further  to  be  observed  that  if  the  loss  or  ill  execu- 
tion be  not  properly  attributable  to  the  fault  or  unskilful- 
ness  of  the  workman,  or  of  his  servants,  but  arise  from  an 
inherent  defect  in  the  thing  upon  which  the  work  is  done, 
the  bailor,  having  furnished  the  materials,  cannot  treat  the 
bailee  as  guilty  of  negligence.^  But  if  the  materials  w^ere 
furnished  by  the  bailee,  and  the  result  were  a  failure  to 
perform  the  contract  altogether,  or  a  failure  to  perform  it 
within  the  time  agreed  upon,  the  bailee  would  be  liable ; 
unless  perhaps  the  materials  required  by  the  bailor  were 
such  as  he  (the  bailee)  was  not  familiar  with,  and  he  had 
exercised  such  skill  as  he  possessed  in  the  management  of 
them,  the  risk  being  taken  by  the  bailor.* 

§  5.     Of  Professional  Services. 

The  only  difference  between  the  case  presented  in  the 
present  section  and  that  in  the  last  half  of  the  preceding  is 

1  Story,  Bailments,  §  433.  2  jj.  §  435.  3  i^.  §  428  a. 

*  In  the  latter  case,  the  bailor  might  himself  be  liable  to  the  bailee, 
as  in  case  of  injury  from  dangerous  materials  ordered  by  the  bailor. 


Chap.  XVII.  §  5.]  NEGLIGENCE.  299 

that  there  is  now  no  bailment  of  goods  to  be  wrought  upon. 
The  rules  of  law  with  regard  to  the  duty  of  the  person  em- 
ployed are  not  materially  different  from  those  above  pre- 
sented. To  render  a  professional  man  liable  for  negli- 
gence, it  is  not  enough  that  there  has  been  a  less  degree 
of  skill  than  some  other  professional  men  might  have 
shown.  Extraordinary  skill  is  not  required  unless  pro- 
fessed or  contracted  for ;  a  fair  average  degree  of  skill  is 
all  that  can  be  insisted  on.  Or,  as  it  has  been  laid  down, 
a  person  who  enters  a  learned  profession  undertakes  to 
bring  to  the  exercise  of  his  business  simply  a  reasonable 
degree  of  skill  and  care.  He  does  not  undertake,  if  an 
attorney,  that  he  will  gain  a  cause  at  all  events,  or,  if  a 
physician,  that  he  will  effect  a  cure.* 

For  special  illustration  of  the  application  of  this  doc- 
trine, the  nature  of  the  liability  of  lawyers  and  of  doctors 
of  medicine  for  negligence  may  be  taken. 

Every  client  has  a  right  to  expect  the  exercise,  on  the 
part  of  his  attorney,"^  of  care  and  diligence  in  the  perform- 
ance of  the  business  intrusted  to  him,  and  of  a  fair  aver- 
age degree  of  professional  skill  and  knowledge ;  and  if 
an  attorney  have  not  as  much  of  these  qualities  as  he 
ought  to  possess,  or  if,  having  them,  he  neglect  to  use 
them,  the  law  makes  him  liable,  prima  facie,  for  any 
loss  which  may  have  been  sustained  thereby  by  his 
client.^ 

Hence  an  attorney  possessed  of  a  reasonable  amount  of 
information  and  skill,  according  to  the  duties  which  he 
undertakes  to  perform,  and  exercismg  what  he  possesses 
with  reasonable  care  and  diligence  in  the  affairs  of  his 
client,  is  not  liable  for  errors  in  judgment,  whether  in 

1  Lamphier  v.  Phipos,  8  Car.  &  P.  475,  Tiudal,  C.  J.  ;  Hart  v. 
Frame,  6  Clark  &  F.  193,  210  ;  Graham  v.  Gautier,  21  Texas,  111. 

2  '  Attorney    =  lawyer  of  any  grade  or  name.  . 
'  Saunders,  Negligence,  155. 


300  LAW  OF  TORTS.  [Part  III. 

matters  of  law  or  of  discretion,  unless  he  profess  to  have 
a  high  order  of  skill. 

It  is  clear,  however,  that,  when  an  injury  has  been  sus- 
tained which  could  not  have  happened  except  from  want 
of  reasonable  skill  and  diligence  on  the  part  of  the  attor- 
ney, the  law  will  hold  him  liable.  To  take  proceedings 
upon  a  wrong  statute,  where  there  is  no  question  of  doubt- 
ful construction  involved,  would  be  evidence  of  negligence 
under  this  rule.  For  example  :  The  defendant,  an  attor- 
ney, is  employed  to  take  statutory  proceedings  on  behalf 
of  the  plaintiffs  against  their  apprentices  for  misconduct. 
The  defendant  proceeds  upon  a  section  of  the  statute  re- 
lating to  servants  and  not  to  apprentices.  This  is  deemed 
such  a  want  of  skill  or  diligence  as  to  render  the  attorney 
liable  to  repay  to  the  plaintiffs  the  damages  and  costs  in- 
curred by  his  mistake.^ 

If  an  attorney  has  doubt  in  regard  to  the  legal  effect  of 
an  instrument  in  which  his  client  is  concerned,  and  sub- 
mits the  question  to  counsel  for  advice  on  which  to  act,  he 
must  state  the  facts  correctly  and  with  fulness.  If,  in- 
stead of  laying  the  case  and  facts  fully  before  the  counsel, 
he  attempts  to  state  inferences  from  the  facts,  he  acts  at 
his  peril.  The  counsel  should  be  permitted  to  draw  his 
own  inferences.  For  example  :  The  defendant,  a  lawyer 
employed  by  the  plaintiff",  seeking  counsel  of  another  law- 
yer, misstates  the  legal  effect  of  certain  deeds  not  accom- 
panying the  case,  whereby  he  (the  defendant)  receives  and 
acts  upon  incorrect  advice,  to  the  damage  of  the  plain- 
tiff.    This  is  evidence  of  negligence.^ 

In  the  like  exercise  of  due  care  and  skill,  an  attorney 
employed  to  investigate  the  title  to  an  estate,  or  to  seek 
out  a  good  investment  and  obtain   security  for   money 

1  Hart  V.  Frame,  6  Clark  &  F.  193. 

2  Ireson  v.  Pearman,  3  B.  &  C.  799. 


Chap.  XVII.  §  5.]  NEGLIGENCE.  301 

advanced,  must  examine  the  title  to  and  extent  of  the 
security  offered ;  and  even  then,  if  the  title  prove  obvi- 
ously defective,  or  the  security  prove  evidently  bad  or  in- 
sufficient, he  will  be  liable.^ 

The  authorities,  finally,  appear  to  establish  the  rule  that 
an  attorney  is  liable  for  the  consequences  of  ignorance  or 
non-observance  of  the  rules  of  practice  of  court,  for  the 
want  of  care  in  the  preparation  of  a  cause  for  trial,  or  of 
attendance  thereon  with  his  witnesses,  and  for  the  mis- 
management of  so  much  of  the  conduct  of  the  cause  as  is 
usually  allotted  to  his  department  of  the  profession.  On 
the  other  hand,  he  is  not  answerable  for  error  in  judg- 
ment upon  points  of  new  occurrence,  or  of  nice  or  doubt- 
ful construction,  or  of  such  as  are  usually  submitted  to 
one  in  the  highest  walks  of  the  legal  .profession.^ 

To  render  a  doctor  of  medicine  liable  for  negligence, 
there  must  likewise  appear  to  have  been  a  failure  to  exer- 
cise such  diligence  or  skill  as  a  prudent  practitioner  of 
fair  ability  would  have  exercised  under  the  same  circum- 
stances. The  degree  of  diligence  required  will  be  propor- 
tionate to  the  nature  of  the  case ;  and,  in  some  cases, 
nothing  short  of  the  highest  degree  of  diligence  can  be 
excusable. 

As  regards  the  skill  to  be  exercised,  however,  nothing 
more  than  a  reasonable  degree  can  be  insisted  upon  ;  the 
law  does  not  require  the  exercise  of  the  highest  medical 
ability,^  unless  the  party  has  held  himself  out  as  possessed 
of  or  has  contracted  for  it.  For  example :  The  defend- 
ant, a  physician,  is  retained  as  accoucheur  to  attend  the 
plaintiff's  wife,  and  the  plaintiff  alleges  that  he  failed  to 

1  Knight  V.  Quarles,  4  Moore,  532  ;  Whitehead  v.  Greetham,  10 
Moore,  183  ;  Donaldson  v.  Haldane,  7  Clark  &  F.  762. 

2  Godefroy  v.  Dalton,  6  Bing.  460. 

3  Graham  v.  Gautier,  21  Texas,  111. 


802  LAW   OF  TORTS.  [Part  III. 

use  due  and  proper  care  and  skill  in  the  treatment  of  the 
lady,  whereby  she  was  injured.  The  judge  instructs  the 
jury  that  it  is  not  enough  to  make  the  defendant  liable 
that  some  medical  men,  of  far  greater  experience  or  abil- 
ity, might  have  used  a  greater  degree  of  skill,  nor  that 
even  he  might  possibly  have  used  some  greater  degree  of 
care.  The  question  to  be  decided  is,  whether  there  has 
been  a  want  of  competent  care  and  skill  to  such  an  extent 
as  to  lead  to  the  bad  result.^  Again  :  The  defendant,  a 
surgeon,  is  employed  by  the  plaintiff  to  treat  an  injur}^ 
to  his  hand  and  wrist ;  and  the  plaintiff  alleges  that  he 
conducted  himself  in  the  business  in  such  a  careless,  neg- 
ligent, and  unskilful  manner,  that  the  plaintiff's  hand  be- 
came withered,  and  was  likely  to  become  useless.  The 
judge  instructs  the  jury  that  the  question  for  them  to 
decide  is,  whether  they  are  satisfied  that  the  injury  sus- 
tained is  attributable  to  the  want  of  a  reasonable  and 
proper  degree  of  care  and  skill  in  the  defendant's  treat- 
ment. The  defendant's  business  did  not  require  him  to 
undertake  to  perform  a  cure,  nor  to  use  the  highest  possi- 
ble degree  of  skill. ^ 

If  the  patient,  by  refusing  to  adopt  the  remedies  of  the 
physician,  frustrate  the  latter's  endeavors,  or  if  he  aggra- 
vate the  case  by  his  own  misconduct,  he,  of  course,  cannot 
hold  the  physician  liable  for  the  consequences  attributable 
to  such  action.  Still  if,  after  such  misconduct,  the  phy- 
sician continue  to  treat  the  patient,  he  will  be  liable  for 
any  injury  sustained  by  reason  of  his  own  negligence  in 
such  subsequent  treatment.^  Want  of  consideration  is  by 
the  better  rule  no  defence.* 

1  Rich  V.  Pierpont,  3  Post.  &  F.  35. 

2  Lampliiei-  v.  Phipos,  8  Car.  &  P.  475.  These  two  cases,  though 
at  nisi  prius,  are  often  refei-red  to  as  authority.  Like  the  second  is 
Wood  V.  Clapp,  4  Sneed,  65. 

8  Hibbard  v.  Thompson,  109  Mass.  286  ;  Wharton,  Negligence,  §  737. 
*  Gill  V.  Middleton,   105  Mass.  479.      But  see  Ritchey  v.  West, 


CiiAP.  XVII.  §  6.]  NEGLIGENCE.  303 


§  6.     Of  Telegraph  Companies. 

Telegraph  companies  are  bound  to  exercise  reasonable 
diligence  and  care  in  the  transmission  of  messages,  and 
are  liable  to  tlie  senders  for  any  failure  to  conform  to  the 
requirements  of  this  duty.  They  are  not  insurers  of  the 
correct  transmission  of  despatches.-' 

They  are,  however,  bound  to  deliver  the  precise  mes- 
sage given  them  for  transmission  (when  it  is  legibly 
written) ,  and  for  a  failure  to  do  so  they  are  liable,  in  the 
absence,  at  least,  of  a  rule  requiring  the  message  to  be 
repeated  by  the  receiver,  and  this,  too,  even  in  the  face 
of  a  notice  to  the  contrary ;  unless  the  error  was  caused 
by  the  condition  of  the  atmosphere,  or  by  some  other 
obstacle,  without  fault  on  the  part  of  the  telegraph  com- 
pany. For  example  :  The  defendants  receive  a  message 
from  the  plaintiffs  for  transmission  at  night,  ordering  a 
cargo  of  corn  at  a  price  named  by  the  owner.  The  mes- 
sage is  written  upon  a  blank  of  the  defendants,  at  the  top 
of  which  is  a  declaration  that  the  defendants  are  not  to 
be  liable  for  mistalves,  or  delays,  or  non-delivery  bej'ond 
the  sum  paid  for  the  message.  The  message  is  sent ;  but, 
by  reason  of  negligence,  it  is  not  correctly  delivered,  and 
the  plaintiffs  fail  to  obtain  the  corn  at  the  price  named, 
the  grain  having  directly  advanced  in  price.  The  defend- 
ants are  liable,  the  notice  being  unreasonable.^ 

A  condition  that  the  telegraph  company  shall  not  be 
liable  to  the  sender  of  a  despatch  for  a  mistake  in  it,  un- 

23  III.   385,    proceeding  upon  the   old  notion   of   bailment  without 
reward. 

1  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525,  533  ;  Breese  v. 
United  States  Tel.  Co.,  48  N.  Y.  132  ;  Playford  v.  United  Kingdom 
Tel.  Co.,  L.  R.  4  Q.  B.  706,  710. 

2  See  True  v.  International  Tel.  Co.,  60  Maine,  9.  The  message 
was  not  delivered  at  all  in  this  case. 


304  LAW  OF   TORTS.  [Part  III. 

less  the  message  shall  be  repeated  by  the  receiver,  is,  how- 
ever, reasonable  and  valid,  though  referred  to  as  among 
the  conditions  on  the  back  of  the  blank  used  by  the  sender, 
and  though  it  be  not  read.^  And  the  same  is  true  of  a 
condition  that  the  telegraph  company  shall  not  be  liable 
for  mistakes  occurring  on  other  lines,  in  the  course  of 
transmitting  a  message,  though  the  first  company  receive 
pay  for  the  entire  transmission.^  But  it  is  held  that  a 
condition  that  the  company  shall  not  be  liable  for  mistakes 
or  delays  in  transmitting  despatches  applies  merely  to  the 
transmission,  and  not  to  delays  in  delivering  them.^ 

It  is  proper,  in  this  connection,  to  observe  that,  by  the 
American  law,  the  telegraph  company  is  also  liable  to  the 
person  to  whom  the  message  is  transmitted,  upon  delivery 
thereof,  in  case  of  an  error  in  transmission  attributable  to 
the  fault  of  the  company,  when  the  error  is  attended  with 
damage  to  the  person  receiving  it.*  The  rule  is  other- 
wise in  England.^  But  the  telegraph  company  is  (prob- 
ably) uuder  no  liability  to  the  person  to  whom  a  message 
is  addressed  for  a  failure,  however  negligent,  to  deliver, 
unless  the  sender  was  his  agent. 

1  Breese  v.  United  States  Tel.  Co.,  48  IST.  Y.  132  ;  Wolf  v.  Western 
Union  Tel.  Co.,  62  Penn.  St.  83  ;  Ellis  v.  American  Tel.  Co.,  13  Allen, 
226  ;  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525. 

2  Western  Union  Tel.  Co.  v.  Carew,  supra. 

8  Bryant  v.  American  Tel.  Co.,  1  Daly,  575. 

*  New  York  &  W.  Tel.  Co,  v.  Drybnrg,  35  Penn.  St.  298  ;  Elwood 
V.  Western  Union  Tel.  Co.,  45  N.  Y.  549  ;  Ellis  v.  American  Tel.  Co., 
13  Allen,  226  ;  Gulf  Ry.  Co.  v.  Levy,  59  Texas,  563.  The  ground  of 
liability  is  variously  stated.  See  L.  C.  Torts,  621  et  seq.  One  ground 
taken  is  that  the  defendants  are  to  be  treated  as  having  made  to  the 
plaintiff  a  false  representation  of  their  authority  from  the  sender 
to  deliver  the  message.  May  v.  Western  Union  Tel.  Co.,  112 
Mass.   90. 

5  Playford  v.  United  Kingdom  Tel.  Co.,  L.  R.  4  Q.  B.  706.  The 
English  courts  hold  that  the  only  duty  owed  by  the  telegraph  company 
is  to  the  sender  of  the  message. 


Chap.  XVII.  §  7.]  NEGLIGENCE.  305 


§  7.     Of  the  Liability  of  Agents,  Servants,  Trustees, 

AND  THE  Like. 

The  test  of  the  liability  of  an  agent  to  his  principal  for 
damage  done  by  reason  of  alleged  negligence  is,  speaking 
generally,  the  conduct  of  a  diligent  or  careful  or  skilful 
agent  in  the  like  situation.  If  the  agent's  action  conform 
to  this  standard,  he  will  be  exempt  from  liability  ;  other- 
wise not.  But  it  is  important  to  look  into  this,  rule 
somewhat. 

In  accordance  with  the  general  rule,  it  is  held  not  neces- 
sary, in  order  to  fix  the  liability  of  a  factor  to  his  princi- 
pal for  damage,  to  prove  that  the  factor  has  been  guilty 
of  fraud  or  of  such  gross  negligence  as  might  carry  with 
it  a  presumption  of  fraud.  The  factor  is  required  to  act 
with  reasonable  care  and  prudence  in  his  employment, 
exercising  his  judgment  after  proper  inquiry  and  precau- 
tions.^ If  the  exercise  of  ordinary  diligence  on  his  part 
would  have  prevented  the  loss,  he  will  be  liable  ;  otherwise 
not.  For  example  :  The  defendants,  factors,  are  directed 
by  the  plaintiff,  their  principal,  to  remit  in  bills  the  amount 
of  funds  in  their  hands.  They  do  so  in  the  bills  of  persons 
who  at  the  time  are  in  good  credit  in  the  place  in  which 
the  factors  reside,  though  not  in  the  place  of  residence  of 
the  plaintiff.  If  they  have  not  notice  of  the  latter  fact,  the 
defendants  are  not  liable  ;  due  diligence  not  requiring  them 
to  make  inquiry  of  the  credit  of  the  parties  to  the  bills  at 
the  place  of  residence  of  the  principal,  when  they  are  of 
good  credit  at  the  place  of  residence  of  the  f actors. ^ 
Again  :  The  defendants,  factors,  are  requested  to  remit  to 
the  plaintiff,  their  principal,  in  bills  '  on  some  good  house 
in  New  York,'  the  plaintiff's  place  of  residence.     They 

1  Story,  Agencj',  §  186. 

2  Leverick  u.  Meigs,  1  Cowen,  645- 

20 


306  LAW  OF    TORTS.  [Part  III. 

remit  in  the  hills  of  R  and  B,  partners,  drawn  upon  and 
accepted  hy  B,  the  former  residing  at  the  place  of  resi- 
dence of  the  defendants,  the  latter  at  the  place  of  resi- 
dence of  the  plaintiff,  to  the  defendant's  knowledge.  R 
and  B  have  houses  of  business  at  both  places.  R  (the 
resident  party)  is  in  good  credit  at  the  defendant's  place 
of  residence,  but  B  (the  New  York  party)  is  not.  The 
defendants  are  liable  whether  they  knew  B's  standing  or 
not ;  being  bound  to  make  inquiry  in  regard  to  him.^ 

Extraordinary  emergencies  may  arise  in  which  an  agent 
may,  on  grounds  of  necessity,  be  justified  in  assuming  ex- 
traordinary powers  ;  and  his  acts  fairly  done  under  such 
circumstances  will  be  deemed  lawful.^  On  the  other  hand, 
it  seems  clear  that  the  presence  of  such  emergencies  may 
not  only  justify,  but,  in  the  light  of  prudence,  even  de- 
mand the  resort  to  extraordinary  measures.  Ordinarily, 
it  is  proper  and  (probably)  necessary  for  an  agent  to 
deposit  the  funds  of  his  principal  in  bank  ;  *  but  if  a  hos- 
tile army  were  approaching  the  place  at  the  time,  to  the 
knowledge  of  the  agent,  prudence  would  require  him  to 
make  some  other  and  unusual  disposition  of  the  funds.* 

The  duty  of  an  agent  employed  to  procure  insurance  is 
to  take  care  that  the  policy  is  executed  so  as  to  cover  the 
contemplated  risk  ;  and  to  this  end  he  is,  of  course,  bound 
to  possess  and  use  reasonable  skill.  The  agent  is  also  to 
take  care  that  the  underwriters  are  in  good  credit ;  though 
it  is  enough  that  they  are  at  the  time  in  good  repute.^ 

What  is  the  proper  exercise  of  due  diligence  and  skill  in 
such  cases  is  sometimes  a  matter  of  great  nicety.  On  the 
one  hand,  an  agent  who  acts  bona  fide  in  effecting  insur- 

^  Leverick  v.  Meigs,  1  Cowen,  645. 
2  Story,  Agency,  §  141  ;  Bailments,  §  83. 
8  Heckert's  Appeal,  69  Penn.  St.  264. 
*  See  Wood  v.  Cooper,  2  Heisk.  441. 
•»  Story,  Agency,  §  187. 


Chap.  XVII.  §  7.]  NEGLIGENCE.  307 

ance  for  his  principal,  using  reasonable  skill  and  diligence, 
is  not  liable  to  be  called  to  account,  though  the  insurance 
might  possibly  have  been  procured  from  other  underwriters 
on  better  terms,  or  so  as  to  include  additional  risks,  by 
which  the  principal  might,  in  the  event  of  loss  by  those 
risks,  have  been  indemnified.^  On  the  other  hand,  an 
agent  in  the  like  case  is  bound  to  have  inserted  in  the 
policy  all  the  ordinary  risks  commonly  covered  ;  and  if  he 
omit  to  have  them  inserted  when  a  reasonable  attention  to 
his  business  and  the  objects  of  the  insurance  would  have 
induced  other  agents,  of  reasonable  skill  and  diligence, 
to  have  them  inserted,  he  will  be  liable  for  negligence  in 
case  of  loss.^  And  the  same  will  be  true  if  he  negli- 
gently or  wilfully  conceal  a  material  fact  or  make  a 
material  misrepresentation  whereby  the  policy  is  after- 
wards avoided.^ 

In  any  case,  if  it  should  appear  that,  even  if  the  duty 
expected  had  been  performed  with  proper  care,  the  princi- 
pal could  have  derived  no  benefit  therefrom,  either  because 
the  result  would  have  been  contrary  to  express  law  or  to 
public  policy  or  to  good  morals,  the  negligence  of  the 
agent  or  other  party  acting  in  the  matter  is  not  a  breach 
of  duty.'* 

Servants  also  are  bound  to  take  due  care  of  their  mas- 
ter's interests,  so  far  as  intrusted  to  them.  If  a  servant 
be  guilty  of  a  failure  to  exercise  such  care  or  skill  or  pru- 
dence as  a  diligent  servant  would  exercise  under  the  cir- 
cumstances, and  the  master  suffer  damage  thereby,  the 
servant  will  be  liable  for  a  breach  of  duty.  On  the  other 
hand,  the  servant  is  not  bound  to  prevent  loss  to  his  mas- 

1  Story,  Agency,  §  191  ;  Moore  v.  Mourgue,  Cowp.  479. 

2  Id.  §  191  ;  Park  v.  Hammond,  6  Taunt.  495. 
8  Maj'hew  v.  Forrester,  5  Taunt.  615. 

*  Story,  Agency,  §  238. 


308  LAW  OF  TORTS.  [Part  III. 

ter  at  all  hazards  ;  he  is  only  reqmred  to  use  the  care  or 
skill  of  a  diligent  servant.  For  example  :  The  defendant, 
a  servant,  loses  by  theft  of  another  the  goods  of  the  plain- 
tiff, his  master  and  a  carrier  ;  but  there  is  no  proof  of 
negligence  on  the  part  of  the  defendant.  The  plaintiff 
must  bear  the  loss.^  Again  :  The  defendant,  treasurer  of 
the  plaintiffs,  is  charged  with  a  failure  to  pay  over  to  the 
plaintiffs  specific  money  in  his  possession.  He  pleads 
that  after  receiving  the  money,  and  before  the  time  when 
he  ought  to  have  paid  it  or  could  have  paid  it  to  the  plain- 
tiffs, he  was  robbed  by  violence  of  the  whole  amount 
without  any  default  or  want  of  due  care  on  his  part.  The 
plea  shows  that  the  defendant  has  not  violated  his  duty  to 
the  plaintiffs.^ 

If  too  it  should  appear  that  the  principal  or  master, 
upon  a  full  knowledge  of  the  circumstances,  has  deliber- 
ately ratified  the  acts  or  omissions  complained  of,  he  will 
then  be  compelled  to  overlook  the  breach  of  duty,  and 
cannot  recall  his  condonation  of  the  offence.® 

A  trustee  is  not  liable  at  common  law  for  a  loss  which 
has  occurred  through  him,  if  he  exercised  ordinary  skill, 
prudence,  and  caution.^  In  considering  whether  a  trus- 
tee has  made  himself  liable  for  a  loss,  such  as  one  arising 
by  reason  of  a  failure  to  collect  and  convert  into  money 
the  trust  assets,  regard  must  be  had  to  the  nature  of  the 
trust.  A  guardian  is  not  in  ordinary  cases  held  to  such 
prompt  action  in  enforcing  the  collection  of  securities  as 

1  Savage  v.  Walthew,  11  Mod.  135,  coram  Lord  Holt. 

2  Walker  v.  British  Guarantee  Assoc,  18  Q.  B.  277.  See  Doorman 
V.  Jenkins,  2  Ad.  &  E.  256,  ante,  pp.  293,  294. 

3  Story,  Agency,  §  239. 

*  Twaddle's  Appeal,  5  Rarr,  15  ;  Miller  v.  Proctor,  20  Ohio  St.  442  ; 
Harvard  College  v.  Amory,  9  Pick.  446,  461  ;  Hunt,  Appellant,  141  Mass. 
515  ;  Charitable  Corp.  v.  Sutton,  2  Atk.  400,  Lord  Hardwicke. 


Chap.  XVII.  §  7.]  NEGLIGENCE.  309 

an  executor,  administrator,  or  assignee  acting  for  the 
benefit  of  creditors.  The  duty  of  a  guardian  is  to  hold 
and  retain  ;  of  an  executor,  to  collect  and  prepare  for 
distribution.^  But  it  is  the  duty  of  a  trustee  to  be  active 
in  reducing  to  his  possession  any  debt  forming  part  of  the 
trust  fund  ;  for  the  consequences  of  neglect  he  would  be 
liable.^ 

An  administrator  or  executor,  or  an  assignee  of  an  insol- 
vent, should  within  a  reasonable  time  make  proper  efforts 
to  convert  all  the  assets  and  securities  of  the  estate  into 
money  for  distribution  ;  failing  to  make  such  effort,  the 
party  is  liable  for  any  loss  to  the  estate  thereby  sustained. 
For  example :  The  defendant,  an  executor,  fails  for  sev- 
eral years  after  the  death  of  the  testator  to  call  in  part  of 
the  personal  estate  left  out  on  personal  security  by  the 
testator  himself.  The  debtor  becomes  bankrupt,  but  down 
to  that  time  pays  his  interest  regularly.  Eight  months 
afterwards,  the  plaintiffs,  cestuis  que  trust,  request  the 
defendant  to  call  in  the  money,  but  nothing  can  be  found. 
The  defendant  is  liable.^ 

If  the  business  of  the  trustee  be  such  as  to  involve 
questions  of  law,  or  such  as  to  suggest  the  aid  of  legal 
counsel,  due  care  and  diligence  will  (probably)  require 
him  to  obtain  legal  advice.  But  having  done  so,  and 
having  no  reason  to  suppose  that  the  advice  given  is  in- 
competent, the  trustee  will  be  exonerated  in  acting  there- 
on. For  example :  The  defendants,  executors  of  an 
estate,  under  directions  to  invest  the  moneys  of  the  estate 
on  loan  well  secured,  apply  to  a  lawyer  of  good  standing 
in  another  town  concerning  the  security  of  a  mill  in  that 

1  Chambersburg  Sav.  Assoc.  Appeal,  76  Penn.  St.  203  ;  Charlton's 
Appeal,  34  Penn.  St.  473. 

2  Caffrey  v.  Darby,  6  Ves.  488. 

3  Powell  V.  Evans,  5  Ves.  839  ;  Johnson's  Estate,  9  "Watts  &  S.  107  ; 
Chambersburg  Sav.  Assoc.  Appeal,  supra. 


310  LAW  OF  TORTS.  [Pakt  III. 

place,  offered  by  a  person  desiring  to  borrow  money  of 
the  defendants,  and  are  told  that  the  security  is  good ; 
and  a  mortgage  of  the  borrower's  interest  therein  is 
accordingly  taken.  The  mill,  however,  is  owned  by  the 
borrower  and  another  in  partnership,  and  is  liable  for  the 
firm  debts.  The  owners  become  insolvent,  and  the  note 
of  a  third  person,  well  secured,  is  offered  the  defendants 
on  condition  of  a  release  of  the  mortgage.  By  advice  of 
the  same  lawyer,  the  offer  is  declined,  and  the  mill  secur- 
ity is  lost.  The  defendants  are  not  liable',  having  acted 
with  the  prudence  of  men  of  ordinary  diligence,  care,  and 
prudence  in  the  matter.^ 

Directors  of  corporations  are  bound  to  exercise  all  tTie 
ordinary  diligence  of  persons  in  the  same  situation  ;  -  and 
that  may  vary  according  to  the  nature  of  the  business.^ 
In  speculative  ventures,  so  understood  by  all  parties  con- 
cerned, a  less  rigid  rule  of  prudence  would  be  applied  than 
in  transactions  not  speculative  ;  and  it  is  laid  down  that  in 
cases  of  the  first  kind  '  crassa  negligentia '  must  be  shown, 
if  the  directors  acted  within  their  powers,,  in  order  to  im- 
pose liability  upon  them.*  Directors  are  not  in  ordinary 
cases  expected  to  devote  their  whole  time  and  attention  to 
the  corporation  over  whose  interests  they  have  charge, 
and  are  not  guilty  of  negligence  in  failing  to  give  constant 
superintendence  to  the  business.  Other  officers,  to  whom 
compensation  is  paid  for  their  whole  time  ih  the  affairs  of 
the  corporation,  have  the  immediate  mahagement.  But- 
the  duties  may  be  such  as  to  require  all  the  time  of  the 

1  Miller  w.  Proctor,  20  Ohio  St.  442.  In  England  and  in  some  of 
our  States  a  trustee  investing  trust  funds  must  invest  in  real  estate  or 
in  govei'nment  securities.  Hemphill's  Estate,  18  Penn.  St.  303.  Con- 
tra, in  other  States.  New  England  Trust  Co.  v.  Eaton,  140  Mass.  532, 
535  ;  Brown  v.  French,  125  Mass.  410. 

2  Overeud  v.  Gibb,  L.  R.  5  H.  L.  480,  494,  Lord  Hatherley. 
8  Id.  4  Id. 


Chap.  XVII.  §  7.]  NEGLIGENCE.  311 

directors  ;  and  whatever  the  office,  if  they  undertake  it 
they  must  perform  it  fully  and  entirely.^ 

In  relation  to  those  officers,  the  duties  of  directors  are 
those  of  control ;  and  the  neglect  which  would  render  them 
liable  for  not  exercising  that  control  properly  must  depend 
upon  circumstances.  They  are  simply  to  exercise  common 
diligence  over  such  officers.  If  nothing,  in  the  exercise  of 
such  diligence,  has  come  to  their  knowledge  to  awaken 
suspicion  concerning  the  conduct  of  the  managing  officers, 
the  directors  are  not  guilty  of  negligence,  and  hence  are 
not  liable  for  losses  sustained  by  reason  of  the  misconduct 
of  such  officers.^  Those  officers  are  the  agents  or  servants 
of-the  corporation,  not  of  the  directors. 

If,  however,  the  directors  become  acquainted  with  any 
fact  concerning  the  officers  of  the  body,  calculated  to  put 
prudent  men  on  their  guard,  a  degree  of  care  commensur- 
ate with  the  evil  to  be  avoided  is,  it  seems,  required  ;  and 
a  failure  to. exercise  such  care,  resulting  in  damage  to  the 
corporation  or  to  its  customers,  will  render  the  directors 
personally  liable.^  And  the  same  rule  (probably)  applies 
to  all  trustees  or  general  officers  having  the  oversight  of 
subordinate  officers.  'But  generally  speaking  the  liability 
of  the  directors  or  trustees  in  such  cases  is  to  the  corpo- 
ration itself  and  not  to  the  individual  members.* 

1  York  &  North  Midland  Ry.  Co.  v.  Hudson,  16  Beav.  485,  491, 
Romilly,  M.  R. 

2. Percy  v.  Millaudon,  20  Mart.  68. 

3  Brewer  V.  Boston  Theatre,  104  Mass.  378.  Qutere  if  'crassa  neg- 
ligentia' would  be  necessary  to  create  liability  in  sueh  a  case  ?  But 
after  all  'crassa  negligentia '  is  only  negligence  in  the  particular  situa- 
tion ;  it  is  '  crassa '  only  as  compared  with  what  might  be  negligence  in 
a  different  situation.  See  Beal  v.  South  Devon  Ry.  Co.,  3  H.  &  0.  337, 
ante,  p.  296.  The  want  of  that  prudence  which  in  the  same  circum- 
stances a  prudent  man  would  exercise  in  his  own  behalf  is  '  crassa  neg- 
ligentia'.    Lord  Hatherley  in  Overend  v.  Gibb,  L.  R.  .5  H.  L.  480,  494. 

*  Brewer  v.  Boston  Theatre,  supra.     It  is  only  from  necessity,  and 


312  LAW  OF  TORTS.  [Part  III. 

§  8.     Of  Public  Bodies  and  Public  Officers. 

The  fact  that  public  bodies  or  public  officers  may  have 
contracted  with  or  assumed  some  duty  to  the  State  or  to 
a  municipal  government  to  perform  a  duty  faithfully  does 
not  imply  that  they  may  not  also  owe  special  duties  to 
individuals  in  the  performance  of  their  business.-^  Their 
duties  in  this  respect  are  like  those  of  private  individuals 
transacting  similar  business  ;  and  whether  they  receive 
emoluments  or  not  is  immaterial.^  Such  officers  are  bound 
to  exercise  the  diligence  which  the  nature  of  their  position 
reasonably  demands  ;  and  for  a  failure,  resulting  in  special 
damage  to  any  individual,  they  are  liable  to  him.^  For 
example  :  The  defendant,  a  municipal  corporation,  accepts 
a  grant  from  the  English  Crown  conveying  a  borough,  by 
which  it  is  directed  to  keep  in  repair  certain  sea  walls. 
The  corporation  fails  in  this  duty,  and  the  plaintiff,  a  pri- 
vate citizen,  is  injured  thereby.  This  is  a  breach  of  duty 
to  the  plaintiff.*  Again :  The  defendant,  a  public  in- 
spector of  meat,  undertakes,  in  accordance  with  his  official 
duty,  to  cut,  weigh,  pack,  salt,  and  cooper,  for  export,  a 
quantity  of  beef  belonging  to  the  plaintiff,  and  does  the 
same  so  negligently  that  the  meat  becomes  spoiled  and 
worthless.  This  is  a  breach  of  duty  to  the  plaintiff,  and 
the  defendant  is  liable  to  him  in  damages.^ 

An  individual  cannot,  however,  for  his  own  benefit,  in 

to  prevent  a  failure  of  justice,  that  individual  members  of  the  corpora- 
tion can  proceed  against  the  directors  or  trustees.     Id. 

1  Henley  v.  Lyme  Regis,  5  Bing.  91  ;  s.  c.  1  Bing.  N.  C.  222.  See 
Clothier  v.  Webster,  12  C.  B.  N.  s.  790  ;  Mersey  Docks  v.  Gibbs,  L.  R. 
1  H.  L.  93. 

2  Mersey  Docks  v.  Gibbs,  supra. 

8  See  Story,  Agency,  §§  320,  321  ;  Hayes  v.  Porter,  22  Maine,  371 
*  Henley  v.  Lyme  Regis,  supra. 
6  Hayes  v.  Porter,  supra. 


Chap.  XVII.  §  8.]  NEGLIGENCE.  313 

his  own  name,  maintain  a  suit  against  another  for  negli- 
gence in  the  discharge  of  a  public  duty  where  the  damage 
is  solely  to  the  public.-^  The  reason  sometimes  given  for 
this  is,  that  great  inconvenience  would  follow  if  a  person 
violating  a  trust  of  this  kind  could  be  sued  by  each  person 
in  the  community.^  A  better  reason,  possibly,  is,  that  as 
the  right  infringed  belongs  to  the  sovereign,  as  represent- 
ing the  public  at  large,  so  the  correlative  duty  is  one  for 
the  breach  of  which  the  sovereign  alone  can  sue. 

Officers  and  agents  of  the  general  government,  such  as 
postmasters  and  managers  of  public  works,  are  not  liable 
for  the  negligence  or  other  misconduct  of  their  subordi- 
nates, unless  the  latter  are  the  servants  of  the  former  and 
accountable  to  them  alone.  Government  officers  are,  how- 
ever, liable  for  the  consequences  of  their  own  negligence  ;  ^ 
and  this  covers  cases  of  negligence  with  respect  to  the 
conduct  of  such  of  their  subordinates  as  are  under  their 
supervision  and  guidance.*  For  example  :  The  defendant, 
a  postmaster,  appoints  with  notice  an  incompetent  person 
as  a  clerk  to  the  government  in  his  post-office  ;  and,  by 
reason  of  the  negligence  or  incompetence  of  such  person, 
a  letter  coutaining  $100  belonging  to  the  plaintiff  is  lost. 
The  defendant  is  liable.* 

Officers  of  the  courts  are  liable  for  the  injurious  conse- 
quences of  such  official  acts  of  their  own  or  of  their  ser- 
vants as  are  attributable  to  want  of  the  care  of  prudent 
men  in  the  same  situation.^    For  example :  The  defend- 

1  1  Black.  Com.  220. 

2  Wharton,  Negligence,  §  286  ;  Ashby  v.  White,  Ld.  Raj-m.  938. 

3  Clothier  t-.  Webster,  12  C.  B.  n.  s.  790  ;  Mersey  Docks  v.  Gibbs, 
L.  R.  1  H.  L.  93. 

4  Story,  Bailment,  §  463 ;  Schroyer  v.  Lynch,  8  Watts,  453  ;  Wig- 
gins V.  Hathaway,  6  Barb.  632. 

*  See  AViggins  v.  Hathaway,  supra. 

«  Wolfe  V.  Door,  2i  Maine,  104  ;  Dunlopu.  Knapp,  14  Ohio  St.  64; 


314  LAW  OF  TORTS.  tpart  III, 


L* 




ant  levies  upon  a  quantity  of  coal  on  board  a  vessel.  The 
coal  is  left  on  the  vessel,  with  the  master's  consent,  in 
charge  of  a  keeper  of  the  defendant,  and  while  so  held  the 
vessel  is  sunk  during  a  gale,  with  tlie  coal  on  board,  to 
the  damage  of  the  plaintiff,  for  whom  the  levy  is  made. 
The  defendant  is  liable  if  he  has  failed  to  take  such  steps 
for  the  safety  of  the  coal  as  a  careful,  prudent  man,  well 
acquainted  with  the  condition  of  the  vessel  and  its  loca- 
tion with  regard  to  exposure  to  storms,  might  reasonably 
be  expected  to  take  if  the  coal  belonged  to  himself.-^ 

A  judge,  however,  while  acting  in  a  judicial  capacity, 
within  his  jurisdiction,  is  not  liable  for  negligence  ;  ^  and 
the  same  is  true  even  of  a  person  acting  in  a  situation 
which  makes  him  no  more  than  a  private  arbitrator.^ 
Having  submitted  a  dispute  to  the  decision  of  an  arbitra- 
tor, neither  party  can  require  him  to  exercise  the  skill  or 
care  of  an  expert,  unless  he  has  held  himself  out  to  pos- 
sess it,  or  has  agreed  to  exercise  it.  For  example  :  The  de- 
fendant, as  broker,  makes  a  contract  for  the  plaintiff,  as 
follows  :  '  Sold  by  order  and  for  account  of  P,  to  my  prin- 
cipal 8,  to  arrive,  500  tons  Black  Smyrna  raisins  — 1869 
growth  —  fair  average  quality  in  opinion  of  sellmg  broker, 
to  be  delivered  here  in  London  —  at  22s.  per  cwt.,'  &c. 
This  contract  makes  the  defendant  virtually  an  arbitrator, 
to  determine  between  the  parties  any  difference  arising  be- 
tween them  as  to  the  quality  of  the  raisins  tendered  in  ful- 
filment of  the  contract,  not  stipulating  for  care  or  skill  on 
the  part  of  the  defendant ;  and  he  is  not  liable  for  failing 

Kennaid  v.  Willmore,  2  Heisk.  619  ;  Browniug  v.  Hanford,  5  Hill, 
538  ;  Moore  v.  Westervelt,  27  N.  Y.  234. 

1  Moore  v.  Westervelt,  27  N.  Y.  234. 

2  See  Bradley  v.  Fisher,  13  Wall.  335,  350  ;  Yates  v.  Lansing,  5 
Johns.  282  ;  Pratt  v.  Gardiner,  2  Cush.  63. 

3  Pappa  V.  Rose,  L.  R.  7  C.  P.  32,  525  ;  Tharsis  Sulphur  Co.  v. 
Loftus,  L.  R.  8  C.  P.  1.  See  Hoosac  Tunnel  Co.  v.  O'Brien,  137  Mass. 
424. 


Chap,  XVII.  §  9.]  NEGLIGENCE.  315 

to  exercise  reasonable  care  and  skill  in  coming  to  a  deci- 
sion, if  he  act  in  good  faith,  to  the  best  of  his  judgment.^ 

§  9.     Of  the  Use  of  Premises. 

In  this  section,  the  duty  of  the  owner  or  occupant  of 
premises  to  persons  who  have  sustained  damage  thereon, 
by  reason  of  the  condition  of  the  premises,  is  to  be  stated. 
The  question  of  the  existence  and  nature  of  this  duty  turns 
upon  the  consideration  of  the  occasion  which  brought  the 
injured  person  there  ;  that  is,  whether  the  plaintiff  was  a 
trespasser,  a  bare  licensee,  an  invited  licensee,  a  customer, 
or  a  servant.  The  question  must,  therefore,  be  considered 
with  reference  to  each  of  these  situations. 

The  owner  or  occupant  of  premises  owes  no  duty  to  keep 
his  premises  in  repair  for  the  purposes  of  trespassers.  In 
other  words,  it  is  no  breach  of  duty  to  a  trespasser  that  a 
man's  premises  were  in  a  dangerous  state  of  disorder,  what- 
ever the  consequences  to  the  former.  But  this  rule  of  law 
must  not  be  understood  as  declaring  that  the  occupant  or 
owner  owes  no  duty  to  trespassers  with  regard  to  the  man- 
agement of  his  premises.  He  has  no  right  even  towards 
such  persons  to  maim  them,  as  by  savage  beasts  or  hidden 
guns.  For  example  :  The  defendant  has  a  savage  dog  on 
his  premises,  which  he  carelessly  allows  in  the  daytime  to 
run  at  large  unmuzzled,  having  notice  that  the  dog  is 
savage.  The  plaintiff,  having  strayed  upon  the  premises 
without  permission,  while  hunting,  is  attacked  and  bitten 
by  the  dog.  The  defendant  is  deemed  liable. ^  Again  : 
The  defendant  sets  a  spring-gun  in  his  grounds  to  '  catch ' 
persons  entering  thereon  without  permission,  and  fails  to 
give  notice  of  the  particular  danger.     The  plaintiff  while 

1  Pappa  V.  Rose,  supra. 

2  Loomis  V.  Terry,  17  Wend.  496. 


316  LAW  OF   TORTS.  [Part  III. 

trespassing  on  the  premises  is  injured  by  the  gun,  having 
no  notice  of  danger.     The  defendant  is  liable.^ 

A  bare  licensee,  as  the  term  is  here  used,  is  one  who 
enters  another's  premises,  or  is  upon  some  particular  part 
of  the  same,^  without  right  or  actual  grant  of  permission, 
but  still  under  circumstances  from  which  he  has  come  to 
suppose  a  permission  ;  as  in  the  case  of  persons  accus- 
tomed, without  interference,  to  cross  a  portion  of  the  line 
of  a  railway  in  no  definite  track, ^  or  possibly  of  persons 
crossing  an  open  field  on  a  foot-path,  commonly  used  by 
the  neighbors,  but  without  any  right  of  way.  A  person 
so  doing,  though  not  in  a  position  to  requu'e  the  owner  or 
occupant  of  the  land  to  exercise  care  in  regard  to  the 
management  or  the  state  of  the  premises,*  occupies  (prob- 
ably) a  more  favorable  position  than  a  trespasser.  He 
can,  of  course,  insist  that  the  occupant  shall  let  loose  no 
savage  beast  upon  him,  and  set  no  traps  in  his  way,  with- 
out giving  him  fair  notice.  But,  further,  it  should  seem 
that,  if  it  were  usual  for  people  to  pass  over  the  occupant's 
premises  in  the  night-time,  he  could  require  the  occupant 

^  Bird  V.  Holbrook,  4  Bing.  628.  As  to  notice  now,  see  24  and  25 
Vict.  c.  100,  §  31.  If,  iu  the  absence  of  statute,  the  plaintiff  had  full 
notice  of  the  danger,  or  if  he  entered  in  the  night-time  with  a  felonious 
intent,  or  if  he  was  hurt  while  committing  a  crime  there,  he  (probably) 
could  not  recover  ;  though  even  in  such  cases  it  may  be  doubted 
whether  the  owner  of  the  premises  would  be  justified  in  purposely  in- 
flicting greater  harm  than  would  be  necessary  for  the  protection  of  his 
property  and  the  expulsion  of  tlie  intruder.  Upon  the  whole  subject 
see  the  two  cases  just  cited  ;  also  Ilott  v.  Wilks,  3  B.  &  Aid.  308  ; 
Woolf  u.  Chalker,  31  Conn.  121  ;  ante,  p.  201. 

2  See  Batchelor  v.  Fortescue,  11  Q.  B.  D.  474. 

8  Harrison  v.  Northeastern  Ry.  Co.,  29  L.  T.  N.  s.  844.  ' 

*  Batchelor  v.  Fortescue,  11  Q.  B.  D.  474  ;  Harrison  v.  Northeast- 
em  Ry.  Co.,  29  L.  T.  N.  s.  844  ;  Johansen  v.  Davies,  57  L.  J.  Q.  B.  392; 
Sweeny  v.  Old  Colony  R.  Co.,  10  Allen,  368  ;  s.  c,  L.  C.  Torts,  660. 


Chap.  XVII.  §  9]  NEGLIGENCE.  317 

to  exercise  reasonable  care  with  regard  to  the  keeping  of 
vicious  animals,  of  whose  propensity  to  do  harm  the  occu- 
pant has  notice. 

And  it  may  be  that  some  special  duty  has  been  assumed 
by  the  occupant,  or  has  been  imposed  by  law  upon  him, 
as  in  the  case  of  a  railway  company  to  sound  a  whistle  at 
certain  places,  or  to  keep  gates  shut  while  trains  are  pass- 
ing ;  this,  too,  would  modify  the  question  of  liability..^  For 
example  :  The  defendant,  a  railway  company,  has  a  rule 
that  a  whistle  shall  be  sounded  by  express  trains  at  a  cer- 
tain point  where,  with  the  acquiescence  of  the  company, 
persons  are  accustomed  to  cross  its  track.  The  plaintiff's 
intestate  attempts  to  cross  at  the  point  in  the  night,  while 
a  train  is  standing  still  in  such  a  position,  according  to 
some  of  the  evidence,  as  to  prevent  anyone  from  seeing 
an  approaching  express  train,  and  is  run  over  and  killed. 
There  is  evidence,  but  it  is  contradicted,  that  a  whistle  was 
duly  sounded,  and  there  is  evidence  that  the  train  carried 
lights.  A  jury  may  find  the  defendant  guilty  of  breach  of 
duty  to  the  deceased.^ 

A  bare  licensee  can  insist  upon  the  occupant's  keeping 
his  premises  in  a  safe  condition  in  another  particular.  A 
man  has  no  right  to  render  the  highway  dangerous  or  less 
useful  to  the  public  than  it  ordinarily  is  ;  if  he  sJiould  do 
so,  he  is  liable  as  for  a  nuisance  to  anyone  who  has  suf- 
fered damage  thereby.^  And  a  bare  licensee  on  the  wrong- 
doer's premises  will  be  entitled  to  recover  for  any  damage 
sustained  thereby.     For  example :  The  defendant  digs  a 

1  Dublin  &  Wicklow  Ry.  Co.  v.  Slattery,  3  App.  Gas.  1155  ;  North- 
eastern Ry.  Co.  V.  Wanless,  L.  R.  7  H.  L.  12,  as  to  open  gates ;  Wil- 
liams V.  Great  Western  Ry.  Co.,  L.  R.  9  Ex.  157,  open  gates. 

2  Dublin  &  Wicklow  Ry.  Co.  v.  Slattery,  supra.  See  also  Davey  v. 
Southwestern  Ry.  Co.,  12  Q.  B.  Div.  70,  affirming  11  Q.  B.  D.  213 ; 
Gray  v.  Northeastern  Ry.  Co.,  48  L.  T.  N.  s.  904. 

8  Ante,  p.  259. 


318  LAW   OF  TORTS.  [Part  III. 

pit  adjoining  the  highway,  and  fails  to  fence  it  off  from 
the  street.  The  plaintiff,  while  walking  along  the  street, 
in  the  dark,  accidentally  steps  a  little  aside  in  front  of  the 
pit,  and  falls  into  it,  thereby  sustaining  bodily  injury. 
The  defendant's  act  in  leaving  the  place  unguarded  makes 
it  a  public  nuisance,  and  he  is  liable  for  the  injury  received 
by  the  plaintiff.^ 

If,  however,  the  pit,  though  near,  were  not  substantially 
adjoining  the  highway,  so  that  the  plaintiff  must  have 
been  a  trespasser  before  reaching  it,  he  could  not  treat  the 
omission  of  the  defendant  to  fence  as  a  breach  of  duty. 
For  example :  The  defendants,  being  possessed  of  land 
near  to  an  ancient  common  and  public  footway,  construct 
a  reservoir  for  receiving  the  back-wash  of  water  at  the 
lock  of  a  canal  owned  by  them.  The  plaintiff's  intestate 
sets  out  by  night  along  this  footpath  for  Sheffield.  The 
path  runs  alongside  the  canal  for  about  three  hundred 
yards  to  a  point  at  which  it  is  bounded  on  one  side  by  a 
lock,  and  on  the  other  by  the  reservoir.  At  this  point, 
the  pathway  turns  to  the  right  over  a  bridge,  crossing  the 
by-wash.  A  person  continuing  straight  on  in  the  direc- 
tion of  the  pathway,  and  not  turning  to  the  right  to  go  over 
the  bridge,  would  find  himself  (if  not  prevented  by  the  arm 
of  a  lock)  upon  a  grassy  plat  about  five  yards  long  by 
seven  broad,  between  the  lock  and  the  by-wash,  level 
with,  but  somewhat  distant  from,  the  footpath ;  the  plat 
being  unfenced,  and  having  a  fall  of  about  three  yards  to 
the  water.  On  the  morning  following  the  setting  out  of 
the  deceased,  he  is  found  drowned  at  this  point.  The 
defendants  are  not  guilty  of  a  breach  of  duty  in  not  fen- 
cing the  place,  since  it  is  not  substantially  adjoining  the 

^  Barnes  v.  Ward,  9  C.  B.  392.  But  see  contra,  Howland  v.  Vin- 
cent, 10  Met.  371,  in  which,  however,  the  point  appears  to  have  been 
overlooked  that  the  defendant's  act  amounted  to  a  public  nuisance. 


Chap.  XVII.  §  9.]  NEGLIGENCE.  319 

highway,  and  the  deceased  must  have  become  a  trespasser 
before  reaching  the  reservoir.^ 

The  same  will  be  true  of  injury  sustained  by  straying 
cattle  or  horses.-  For  example  :  The  defendant  digs  a  pit 
in  his  waste  land  within  thirty-six  feet  of  the  highway,  and 
the  plaintiff's  horse  escapes  into  the  waste  and  falls  into 
the  pit  and  is  killed.  The  defendant  has  violated  no  duty 
to  the  plaintiff".^  Again  :  The  plaintiff's  horse  strays  upon 
the  defendant's  railway  track  and  is  killed  by  negligence 
(short  of  wantonness)  of  the  defendant's  servants.  The 
defendant  is  not  liable.* 

If  the  licensee  were  invited,  either  expressly  or  by  active 
conduct,  by  the  occupant,  the  situation  becomes  entirely 
changed.  In  such  a  case,  the  occupant  owes  a  duty  to 
the  invited  licensee,  not  merely  to  restrain  his  ferocious 
animals,  and  to  prevent  injury  from  dangerous  concealed 
engines,  and  to  guard  against  nuisances  adjoining  the 
highway,  but  also  to  keep  his  premises  in  reasonable  re- 
pair, and  to  refrain  from  negligence  generally  ;  otherwise, 
he  will  be  liable  for  any  injuiy  sustained  by  the  licensee, 
not  caused  by  the  latter's  own  act.  In  other  words,  the 
owner  or  occupant  ^  is  bound  to  exercise  reasonable  care 

1  Hardcastle  v.  South  Yorkshire  Ry.  Co.,  4  H.  &N.  67.  See  Dinks 
V.  South  Yorkshire  Ry.  Co.,  3  Best  &  S.  244  ;  Houndsell  v.  Smyth,  7 
C.  B.  N.  s.  731  ;  Piggott,  Torts,  236. 

2  Blyth  V.  Topham,  Croke  Jac.  158  ;  Maynard  v.  Boston  &  M.  R. 
Co.,  115  Mass.  458. 

^  Blyth  V.  Topham,  supra. 

*  Maynard  v.  Bo.ston  &  M.  R.  Co.,  supra.  See  however  Charman  i>. 
Southeastern  Ky.  Co.,  21  Q.  B.  Div.  524,  under  statute.  "Wanton  in- 
jury in  such  cases  would  create  liability.  Maynard  v.  Boston  &  ]\I.  R. 
Co.,  supra ;   Eames  v.  Salem  R.  Co.,  98  Mass.  560. 

^  A  lessor  of  premises  is  liable  for  their  condition  if  their  unsafe  con- 
dition was  due  to  his  negligence;  if  due  to  the  negligence  of  the  ten- 
ant, the  latter  is  liable,  unless  the  lessor  has  expressly  assumed  the 


320  LAW   OF  TORTS.  [Part  III. 

to  prevent  damage  from  unusual  danger,  of  which  he  has, 
or  ought  to  have,  knowledge.  For  example :  The  de- 
fendants, a  railroad  corporation,  have  a  private  crossing 
on  their  land  over  their  railroad,  at  grade,  in  a  city,  which 
crossing  they  have  constructed  for  the  accommodation  of 
the  public  ;  and  they  keep  a  flagman  stationed  there  to 
prevent  persons  from  crossing  when  there  is  danger.  Tho 
plaintiff  coming  down  the  way  to  the  crossing  with  horse 
and  wagon  is  signalled  by  the  flagman  to  cross,  and  on 
proceeding,  according  to  the  signal,  to  cross  the  track,  is 
run  against  by  one  of  the  defendants'  engines  ;  the  flagman 
having  been  guilty  of  carelessness  in  giving  the  signal. 
This  is  a  breach  of  duty,  and  the  defendants  are  liable  for 
the  damage  sustained.^  Again  :  The  defendant,  owner  of 
land,  having  a  private  road  for  the  use  of  persons  coming 
to  his  house,  gives  permission  to  a  builder  engaged  in 
erecting  a  house  on  the  land,  to  place  materials  on  the 
road.  The  plaintiff,  having  occasion  to  use  the  road  in 
the  night,  for  the  purpose  of  going  to  the  defendant's 
residence,  runs  against  the  materials  and  sustains  dam- 
age, without  fault  of  his  own.  The  defendant  is  liable  ; 
having  held  out  an  inducement  to  the  plaintiff  to  go  to  the 
place  in  question.^ 

The  gist  of  the  liability  in  such  cases  consists  in  the 
fact  that  the  pei'son  injured  did  not  act  merely  for  his  own 
convenience  and  pleasure,  and  from  motives  to  which  no 
act  or  sign  of  the  owner  or  occupant  contributed,  but  that 

duty  to  keep  in  repair,  or  unless  lie  is  in  possession  with  his  tenant. 
See  Nelson  v.  Liverpool  Brewery  Co.,  2  C.  P.  D.  311  ;  Todd  v.  Flight, 
9  C.  B.  N.  s.  377 ,  Fisher  v.  Thirkell,  21  Mich.  1  ;  s.  c.  L.  C.  Torts, 
627. 

1  Sweeny  v.  Old  Colony  E.  Co.,  10  Allen,  368  ;  s.  c.  L.  C.  Torts, 
660.  See  Clarke  v.  Midland  Ry.  Co.,  43  L.  T.  X.  s.  381.  As  to  the 
discontinuance  of  a  gate-keeper  see  Cliff  v.  Midland  Ry.  Co.,  L.  R.  5 
Q.  B.  258.     Further,  see  the  cases  stated  in  Piggott,  Torts,  238-244. 

2  Corby  v.  Hill,  4  C.  B.  n  s.  556. 


Chap.  XVII.  §  9.]  NEGLIGENCE.  321 

he  entered  the  premises  because  he  was  led  to  believe  that 
they  were  iuteuded  to  be  used  by  visitors  or  passengers, 
and  that  such  use  was  not  only  acquiesced  in  by  the  owner 
or  person  in  possession  and  control  of  the  premises,  but 
that  it  was  in  accordance  with  the  intention  and  design 
with  which  the  way  or  place  was  adapted  and  prepared  or 
allowed  to  be  so  used.^  The  real  distinction,  therefore,  is 
this  :  A  mere  passive  acquiescence  by  an  owner  or  occu- 
pier in  a  certain  use  of  his  land  by  others,  involves  no 
liability  for  negligence  ;  but,  if  he,  directly  or  by  implica- 
tion, induce  persons  to  enter  upon  his  premises,  he  there- 
by assumes  an  obligation  to  keep  them  in  a  safe  condition, 
suitable  for  such  use,  and  for  a  breach  of  this  obligation 
he  is  liable  in  damages  to  a  person  injured  thereby.^ 

It  was  urged  in  the  authority  in  which  this  doctrine  was 
laid  down  (a  point  worthy  of  notice  here)  that,  if  the  de- 
fendants were  liable  in  such  a  case,  they  would  be  made 
to  suffer  by  reason  of  the  fact  that  they  had  taken  precau- 
tions to  guard  against  accident  at  a  place  which  they  were 
not  bound  to  keep  open  for  use  at  all,  and  that  the  case 
would  thus  present  the  singular  aspect  of  a  party  liable  for 
neglect  in  the  performance  of  a  duty  voluntarily  assumed, 
and  not  imposed  by  law.  The  answer  was,  that  this  was 
no  anomaly.  If  a  person,  it  was  observed,  undertake  to 
do  an  act,  or  to  discharge  a  duty,  by  which  the  conduct  of 
others  may  properly  be  regulated,  he  is  bound  to  perform 
it  in  such  a  manner  that  those  who  are  rightfully  led  to  a 
course  of  conduct  or  action  on  the  faith  that  the  act  or 
duty  will  be  properly  performed  shall  not  suffer  loss  or 
injury  by  reason  of  his  negligence. ^  The  liability  in  such 
cases  does  not  depend  upon  the  motives  or  considerations 

1  Sweeny  v.  Old  Colony  R.  Co.,  supra,  Bigelow,  C.  J. 
^  Id.     See  also  Boloh  v.  Smith,  7  H.  &  N.  736,  741. 
3  See  Dublin  &  Wicklow  Ry.    Co.  v.   Slattery,  3  App.   Cas.  1155, 
snpra ;  Cliff  v.  Midland  Ry.  Co.,  L.  R.  5  Q.  B.  258. 

21 


322  LAW  OF   TORTS.  [Paet  III. 

which  induced  a  party  to  take  on  himself  a,  particular 
duty,  but  on  the  question  whether  the  legal  rights  of 
others  have  been  violated  by  the  mode  in  which  the  charge 
assumed  has  been  performed.^ 

In  case  the  injury  arise  by"  reason  of  a  defective  condi- 
tion of  the  occupant's  pi'emises,  it  is  necessary  to  the 
liability  of  the  party  to  a  licensee  that  he  had  notice  of  the 
defect  before  the  damage  was  sustained."  For  example  ; 
The  defendant  is  proprietor  of  a  hotel,  containing  in  one 
of  the  passage-ways  a  glass  door,  the  glass  in  which  has 
gradually  become  loosened  and  insecure  ;  but  the  defend- 
ant is  not  aware  of  the  fact,  nor  is  he  in  fault  for  not 
knowing  it.  The  glass  falls  out  as  the  plaintiff  opens  the 
door,  and  the  plaintiff,  a  visitor  merely,  is  injured.  The 
defendant  is  not  liable.^ 

The  case  of  a  person  entering  upon  the  premises  of 
another  as  a  customer,  on  purposes  of  business,  is  (prob- 
ably) still  stronger  against  the  occupant.  It  should  seem 
that  a  greater  degree  of  care  ought  to  be  taken  to  protect 
such  a  person  than  one  to  whom  a  mere  tacit  inducement 
was  held  out  to  enter,  since  it  may  be  the  duty  of  the  cus- 
tomer to  enter,  and  not  merely  his  convenience.  A  master 
may  require  his  servant  to  go  to  a  neighboring  shop  for 
provisions  ;  and  an  officer  may  be  required  to  enter  upon 
premises  to  make  a  levy.  And  the  right  to  protection 
covers  both  entering  and  leaving  the  premises.* 

It  is  clear  that  customers  stand  upon  a  more  favorable 
plane  than  bare  licensees,  and  that  the  owner  or  occupant 

^  Sweeny  v.  Old  Colony  R.  Co.,  Bigelow,  C.  J. 
2  Welfare  v.  London  &  B.  Ry.  Co.,  L.  R.  4  Q.  B.  693  ;  Southcote  v. 
Stanley,  1  H.  &  N.  247. 

*  Southcote  V.  Stanley,  supra.  Had  the  plaintiff  been  a  guest,  the 
defendant  would  (probably)  have  been  liable. 

*  Chapman  v.  Rothwell,  El.  B.  &  E.  168,  infra. 


Chap.  XVIL  §  9.J  NEGLIGENCE.  323 

of  the  premises  owes  a  duty  to  them  to  keep  the  premises 
in  such  repair  or  condition  as  to  enable  them  to  go  thereon 
for  the  transaction  of  then-  business  in  the  usual  manner 
of  customers  ;  and  that,  if  injury  happen  by  reason  of  the 
improper  state  of  the  premises,  of  which  fact  the  occupant 
has  notice,  he  will  be  liable.  Or,  as  the  rule  has  been 
stated  from  the  bench,  the  owner  or  occupant  of  premises 
is  liable  in  damages  to  those  who  come  to  it,  using  due 
care,  at  his  invitation  or  inducement,  express  or  implied, 
on  any  business  to  be  transacted  with  or  permitted  by  him, 
for  an  injury  occasioned  by  the  unsafe  condition  of  the 
premises  or  of  the  access  thereto,  which  is  known  by  him 
and  not  by  them,  and  which  he  has  negligently  suffered  to 
exist,  and  has  given  them  no  notice  of.-'  For  example  : 
The  defendant,  proprietor  of  a  brewery,  leaves  a  trap- 
door in  a  passage-way  within  his  premises,  leading  to  his 
office,  open  and  unguarded  by  night,  and  the  plaintiff's 
wife,  in  going  through  the  passage-way  by  night  for  pur- 
poses of  business  with  the  proprietor,  falls,  without  fault 
of  her  own,  down  the  hole  and  is  killed.  The  defendant 
is  liable.^ 

In  accordance  with  the  principle  stated,  the  proprietors  of 
a  wharf,  established  for  the  use  of  the  public,  are  liable  for 
injury  sustained  by  a  vessel  by  reason  of  the  dangerous  con- 
dition of  the  place  of  landing,  known  to  the  proprietors  of 
the  wharf  and  carelessly  allowed  to  remain,  and  not  known 
to  the  plaintiff.  For  example  :  The  defendants,  owners  of 
a  wharf  at  tide-water,  procure  the  plaintiff  to  bring  his 
vessel  to  it  to  be  there  discharged  of  its  cargo,  and  suffer 
the  vessel  to  be  placed  there,  at  high  tide,  over  a  rock 
sunk  and  concealed  in  the  adjoining  dock.  The  defend- 
ants are  aware  of  the  position  of  the  rock  and  of  its  dan- 

1  Carleton  v.  Franconia  Iron  Co.,  99  Mass.  216,  Gray,  J. 

2  Chapman  v.  Rothwell,  El.  B.  &  E.  168 ;  Freer  v.  Cameron,  4 
JElich.  228. 


324  LAW  OF  TORTS.  [Part  IIL 

ger  to  vessels ;  but  no  notice  of  its  existence  is  given, 
and  the  plaintiff  is  ignorant  of  the  fact.  With  the  ebb  of 
the  tide,  the  vessel  settles  down  upon  the  rock  and  sus- 
tains injury.  The  defendants  are  guilty  of  a  breach  of 
duty,  and  are  liable  for  the  damage.^ 

The  question  of  the  occupant's  liability  in  eases  like 
this,  will  be  affected  by  the  consideration  whether  the 
injured  party  was  fairly  authorized  under  the  circum- 
stances to  go  upon  the  particular  part  of  the  premises  at 
which  the  accident  happened.  If  the  place  was  one  which 
customers  usually  frequent  without  objection,  it  will  be 
assumed  that  the  party  is  authorized  to  go  there.  For 
example  :  The  defendants,  owners  of  a  shop,  situated  upon 
a  public  street,  let  the  upper  stories  thereof  to  another ; 
and  an  entrance  directly  in  front  of  the  stairs  which  lead 
above  is  so  constructed  and  kept  constantly  open  that  it 
is  used  for  passage  for  persons  going  upstairs.  There  is  a 
trap-door  between  the  entrance  and  the  stairs ;  and  the 
plaintiff  entering  the  place  on  business,  and  in  the  exer- 
cise of  due  care,  falls  through  the  trap,  the  same  being 
open,  and  is  injured.  The  defendant  is  guilty  of  a  breach 
of  duty  in  leaving  the  trap-door  open,  and  is  liable  to  the 
plaintiff.^ 

If,  however,  a  customer  is  injured  by  reason  of  the  bad 
condition  of  a  portion  of  the  premises  not  open  to  the  pub- 
lie,  and  no  invitation  or  inducement  has  been  held  out  to 
him  by  the  owner  or  occupant  to  go  there,  he  cannot  re- 
cover for  injury  sustained  there,  though  the  place  be  fre- 
quented by  the  servants  of  the  occupant.  For  example  : 
The  defendants  are  owners  of  a  foundry,  on  the  front  door 
of  the  outer  part  of  which  is  placed  the  sign  '  No  admit- 
tance.'    The  plaintiff  enters  the  outer  building  to  inquire 

1  Carleton  v.  Franconia  Iron  Co.,  supra;  The  Moorcock,  13  P.  D. 
157  ;  affirmed  14  P.  Div.  64. 
«  Elliot  V.  Pray,  10  Allen,  378. 


Chap.  XVII.  §  9.]  NEGLIGENCE.  325 

after  certain  castings  of  his,  and  the  defendant  tells  him 
that  they  are  nearly  ready,  and  sends  a  workman  into  the 
foundi-y  part  of  the  building  to  see  about  them.  The 
plaintiff  follows  the  workman,  though  not  invited,  and 
though  none  but  persons  employed  there  go  into  the 
foundry,  falls  into  a  scuttle,  and  is  injured.  The  defend- 
ant is  not  liable.^ 

This  duty  to  customers,  however,  requires  the  occupant 
to  use  due  care  over  all  parts  of  his  premises  and  their 
appurtenances  to  which  the  customer  has  need  of  access  in 
the  performance  of  the  business.  For  example  :  The  de- 
fendants, owners  of  a  dock,  provide  a  gangway  for  passage 
from  the  plaintiti's  vessel ;  the  gangway  being  in  an  inse- 
cure position,  to  the  knowledge  of  the  defendants,  but  not 
to  the  knowledge  of  the  plaintiff.  The  plaintiff  is  injured 
while  properly  passing  over  the  same.  The  defendants 
are  liable.^ 

Workmen  too  on  ships  in  dock,  though  not  the  servants 
of  the  dockowner,  are  deemed  to  be  invited  by  him  to  use 
the  dock  and  all  appliances  provided  by  him  as  incident 
to  the  use  of  the  dock.^  Indeed,  the  owner  of  premises 
may  be  liable,  though  the  business  was  not  transacted  by 

■     1  Zoebisch  v.  Tarbell,  10  Allen,  385. 

2  Smith  V.  London  Docks  Co.,  L.  E.  3  C.  P.  326. 

3  Heaven  v.  Pender,  11  Q.  B.  Div.  503,  515.  A  broad  rule  of  lia- 
bility in  negligence  cases  was  laid  down  at  p.  509  by  Lord  Esher, 
broader  than  the  other  judges  were  willing  to  accept.  But  it  was  con- 
sidered correct  in  Thrussell  v.  Handyside,  20  Q.  B.  D.  359,  363.  The 
rule  of  Lord  Esher  was  thus  stated  :  '  Whenever  one  person  is  by  cir- 
cumstances placed  in  such  a  position  with  regard  to  another  that  every- 
one of  ordinary  sense  who  did  think  would  at  once  recognize  that  if  lie 
did  not  use  ordinary  care  and  skill  in  his  own  conduct  with  regard  to 
those  circumstances  he  would  cause  danger  of  injury  to  the  person  or 
property  of  the  other,  a  duty  arises  to  use  ordinary  care  and  skill  to 
avoid  such  danger.'  See  Pollock,  Torts,  354,  note,  418,  note.  For  what 
Heaven  v.  Pender  decides  see  Cann  v.  Wilson,  39  Ch.  D.  39,  42. 


326  LAW   OF   TORTS.  [Part  III 

the  plaintiff  in  the  usual  way  or  place,  provided  he  could 
not  so  do  it  conveniently,  and  was  not  prohibited  from 
doing  it  as  he  did  ;  the  defendant  or  his  servant  seeing  him 
at  the  time.  The  plaintiff  is  not  deemed  a  bare  licensee 
in  such  a  case.'^ 

Where  the  injury  has  been  sustained,  not  by  reason  of 
any  improper  condition  of  the  defendant's  premises,  but  by 
a  fall  down  an  ordinary  stairway,  or  the  like,  the  defend- 
ant is  not  guilty  of  negligence  in  leaving  a  door  open  or 
in  failing  to  give  notice  of  the  place  where  danger  may 
happen." 

In  regard  to  this  class  of  cases,  it  is  to  be  observed 
that,  if  there  be  no  actual  invitation  to  the  injured  person 
to  go  upon  the  premises  in  question,  in  order  to  recover 
damages  for  injury  sustained  he  must  have  gone  upon  the 
premises  for  business  with  the  occupier.^  But  this  is  not 
enough.  A  man  has  no  right  to  intrude  himself  upon  an- 
other, even  for  purposes  of  business.  The  business  which 
will  justify  an  entry  upon  the  premises,  and  entitle  the 
party  to  damages  for  injury  sustained,  must,  in  the  ab- 
sence of  an  express  invitation,  or  an  engagement  for  ser- 
vices, be  the  business  of  the  occupant,  or  business  which 
he  is  bound  to  attend  to.  The  ground  of  liability  is  that 
an  invitation  is  implied  ;  and  an  invitation  can  be  implied 
only  when  the  entry  is  made  in  connection  with  business 
of  the  occupant.  A  retail  dealer  is  bound  to  use  due  dili- 
gence to  keep  his  premises  in  fit  condition  for  persons  who 
go  to  him  to  buy,  but  not  (probably)  for  peddlers  who  go 
to  sell ;  unless  indeed  they  are  persons  with  whom  he  is 

1  Holmes  v.  Northeastern  Ry.  Co.,  L.  R.  4  Ex.  254  ;  s.  c.  L.  R. 
6  Ex.  123,  Exch.  Ch. 

2  Wilkinson  v.  Fairrie,  1  H.  &  C.  633  ;  Gaffney  v.  Brown,  150  Mass. 
479. 

3  Collis  V.  Selden,  L.  R.  3  C.  P.  495  ;  Carletonv.  Franconia  Iron  Co., 
99  Mass.  216  ;  Tebbutt  v.  Bristol  &  E.  Ry.  Co.,  L.  B.  6  Q.  B.  73,  75. 


Chap.  XVII.  §  9.]  NEGLIGENCE.  327 

accustomed  to  deal  and  whom  he  expects  to  come  into  his 
shop.  So  likewise,  under  the  same  circumstances,  he 
would  (probably)  be  liable  for  injury  to  a  creditor,  or  his 
servant,  who  went  into  his  shop  to  demand  paylnent  of  a 
debt  due,  but  not  to  a  beggar. 

It  remains  to  consider  the  nature  of  the  duty  which  a 
master  owes  to  his  servants  with  regard  to  the  condition 
of  his  premises,  his  machinery,  tackle,  and  the  like.  It  is 
settled  law  that  the  master  is  liable  for  injury  sustained 
by  reason  of  his  negligence ;  and  this  is  doubtless  to  be 
understood  as  the  failure  to  exercise  such  care  of  his 
premises  or  machinery  as  a  prudent  or  careful  master 
would  exercise. 

If  the  apparatus  to  be  made  use  of  by  the  servant  be 
unsafe  to  the  knowledge  of  tlie  master,  and  not  to  the 
knowledge  of  the  servant,  and  the  servant  be  liable  to  sus- 
tain damage  thereby,  a  prudent  master  would  give  warn- 
ing of  the  fact  or  procure  proper  apparatus  ;  one  who 
should  fail  to  do  either  would  be  liable  for  any  damage 
sustained  thereby  by  the  servant  without  the  latter's  fault. 
For  example :  The  defendants  employ  the  plaintiff  to  lay 
bricks  for  them,  which  must  be  carried  up  over  a  scaffold, 
erected  by  the  defendants.  The  materials  of  the  scaffold 
are  in  bad  condition  to  the  knowledge  of  the  defendants  ; 
but  they  direct  the  use  of  them,  as  being  good  enough. 
By  reason  of  the  bad  condition  of  the  materials,  the  scaf- 
fold falls,  and  the  plaintiff  is  injured.  The  defendants 
are  liable.^ 

The  nature  and  extent  of  this  duty  of  the  master  have, 
however,  been  the  subject  of  some  conflict  and  doubt.  It 
has  sometimes  been  supposed  that  the  duty  grows  out  of 

1  Roberts  v.  Smith,  2  H.  &  N.  213,  Exch.  Ch.  ;  s.  c.  L.  C.  Torts. 
684 


328  LAW  OF  TORTS.  [Paet  III. 

the  contract  of  service  ;  ^  but  the  contrary  has  with  better 
appearance  of  soundness  been  maintained.'^  In  other  cases, 
and  very  commonly,  it  is  said  that  the  servant  undertakes 
the  ordinary  risks  incident  to  the  business,  and  that  the 
master  therefore  is  not  liable  for  damage  sustained  by  the 
servant  by  reason  of  accidents  arising  from  such  risks  ; 
supposing  the  master  not  to  have  been  personally  guilty 
of  negligence.^  This  may  be  considered  the  usual  way  of 
stating  the  nature  of  the  master's  duty.  It  has,  however, 
been  strongly  argued  that  this  does  not  truly  state  his 
duty  ;  and  that,  apart  from  the  dicta  of  some  of  the  judges, 
there  is  no  final  authority  for  drawing  a  distinction  be- 
tween the  duty  which  a  master  owes  to  his  servant,  with 
regard  to  the  care  of  premises  or  machinery,  and  that 
which  he  owes  to  other  persons  who  have  gone  upon  his 
premises  by  invitation  or  for  business.* 

In  accordance  with  this  latter  view,  it  is  urged  that  it  is 
the  duty  of  all  who  occupy  land  to  which  others  have  the 
right  to  resort  upon  business  with  the  occupier  to  take  care 
that  those  resorting  there  are  not  exposed  to  hidden  dan- 
gers. Such  persons  have  the  right  to  expect  that  the  occu- 
pier will  use  reasonable  care  to  guard  them  from  dangers 
of  the  existence  of  which  he  is  or  ought  to  be  aware,  and 
of  the  existence  of  which  they  are  ignorant ;  provided  he 
has  no  good  reason  to  presume  that  they  have  equal 
knowledge  upon  the  subject  with  himself.  A  servant  may 
be  as  well  acquainted  as  his  master  is  with  the  danger  of 
premises  or  the  defects  of  machinery.  If  he  is,  he  cannot 
recover,  unless  assured  by  the  master  that  everything  not 

1  See  Albro  v.  Jaquith,  4  Gray,  99  ;  Coombs  v.  New  Bedford  Cord- 
age Co.,  102  Mass.  572. 

2  Riley  V.  Baxcndale,  6  H.  &  N.  445,  Martin,  B. 

3  Priestley  v.  Fowler,  3  M.  &  W.  1 ;  Farwell  v.  Boston  &  W.  R.  Co., 
4  Met.  49  ;  s.  c.  L.  C.  Torts,  688  ;  Ciriack  v.  Merchauts'  "Woolen  Co., 
146  Mass.  182  ;  .s.  c.  151  Mass. 

*  Story,  Agency,  §  453  d,  note,  8th  ed. 


-Chap.  XVH.  §  9.]  NEGLIGENCE.  329 

directly  before  his  own  eyes  is  safe,  or  unless  directed  to 
do  the  work.^  But  the  same  may  be  true  of  customers.^ 
The  difference  between  the  two  cases  may  perhaps  be 
only  a  matter  of  presumptive  knowledge  of  the  premise© 
in  the  case  of  a  servant. 

This  view  is  intended  merely  to  point  out  the  (supposed) 
fact  that  personal  negligence  in  the  occupant  of  premises 
towards  a  customer  would  be  negligence  towards  a  ser- 
vant ;  assuming  that  there  is  no  difference  between  the 
two  in  point  of  familiarity  with  the  post  of  danger.  It 
does  not  touch  the  question  of  the  liability  of  a  master  for 
the  negligence  of  a  servant,  where  the  master  himself  is 
not  negligent. 

Whatever  the  true  doctrine  concerning  the  relative 
positions  of  customer  and  servant,  it  is  a  well-settled  rule 
in  regard  to  servants  that  the  master's  duty  requires  him 
to  take  all  reasonable  precautions  for  the  safety  of  his 
men,  and  that  when  he  knows  or  ought  to  know  that  his 
premises,  his  machinery,  or  his  apparatus  are  unsafe,  the 
servant  being  ignorant  of  the  fact,  and  the  master  having 
no  sufficient  cause  to  presume  his  knowledge,  he  will  be 
liable  for  damage  to  his  servant  thereby  sustained.^  In 
like  manner  the  master  is  liable  for  injury  done  to  one  of 
his  servants  by  reason  of  another  servant's  unfitness  or 
incompetency,  of  which  the  master  had  knowledge  or  no- 
tice,** especially  if  the  injured  servant  had  no  notice. 

'  Roberts  v.  Smith,  2  H.  &  N.  213,  Ex.  Ch. 

2  Story,  Agency,  supra. 

8  Id.  ;  Paterson  v.  Wallace,  1  Macq.  748  ;  Williams  v.  Clough,  3 
H.  &  N.  258  ;  Mellors  v.  Shaw,  1  Best  &  S.  437  ;  Bartonshill  Coal  Co. 
V.  Reid,  3  Macq.  266  ;  Watling  v.  Oastler,  L.  R.  6  Ex.  73  ;  Coombs  V. 
New  Bedford  Cordage  Co.,  102  Mass.  572,  586  ;  Lawler  v.  Androscog- 
gin R.  Co.,  62  Maine,  463,  Le  Clair  v.  St.  Paul  R.  Co.,  20  Minn.  9. 

*  Davis  '\  Detroit  R.  Co.,  20  Mich.  105  ;  Harper -y.  Indianapolis  R. 
Co.,  47  Mo.  567  ;  Chapman  v.  Erie  R.  Co.,  55  N.  Y.  529.  See  Toledo 
R.  Co.  V.  Conroy,  61  111.  162  ;  Gilman  v.  Eastern  R.  Co.,  10  Allen,  233. 


330  LAW  or  TORTS.  [Part  III. 

In  the  absence  of  personal  negligence  on  the  part  of 
the  master,  the  master's  duty,  at  common  law,  was  not 
defined,  with  reference  to  injuries  sustained  by  a  servant 
through  the  negligence  of  a  fellow- servant,  by  his  duty  to 
customers.  A  man  is  liable  to  customers  for  damage  sus- 
tained by  reason  of  the  negligence  of  his  servants  in  the 
course  of  their  business  ;  but,  in  the  absence  of  personal 
negligence  on  the  part  of  the  master,  he  was  not  liable  at 
common  law  for  injuries  sustained  by  a  servant  by  reason 
of  the  negligence  of  a  fellow-servant.^  For  example  :  The 
switch-tender  of  the  defendants,  a  railroad  company,  neg- 
ligently leaves  his  switch  open,  whereby  the  plaintiff,  an 
engineer  of  one  of  the  defendant's  locomotives,  is  caused, 
without  fault  of  his  own,  to  run  his  engine  oft'  the  track, 
from  which  he  suffers  bodily  injury.  The  defendants  are 
not  liable  at  common  law,  the  evidence  showing  that  they 
are  not  guilty  of  personal  negligence ;  the  switchman 
being  shown  to  have  been  theretofore  a  careful  and  trust- 
worthy servant.^ 

This  doctrine  was  commonly  put  upon  the  ground 
above  mentioned  with  reference  to  cases  of  master  and 
servant,  to  wit,  that  he  who  engages  in  the  employment 
of  another  for  the  performance  of  specified  duties  and 
services  for  compensation  takes  upon  himself  the  natural 
and  ordinary  risks  and  perils  incident  to  the  performance 
of  such  services.  And  the  negligence  of  fellow-servants 
was  deemed  one  of  these  ordinary  risks. ^ 

Within  this  exemption  of  the  master  from  liability  for 
the  consequences  to  one  servant  of  negligence  by  another 

1  Farwell  v.  Boston  &  W.  E.  Co.,  4  Met.  49  ;  s.  c.  L.  C.  Torts, 
688  ;  Bartonshill  Coal  Co.  v.  Reid,  3  Macq.  266  ;  Bartonslull  Coal  Co. 
V.  McGuire,  Id.  300  ;  Morgan  v.  Vale  of  Neath  Ry.  Co.,  L.  R.  1  Q.  B. 
149,  Excli.  Ch. 

2  Farwell  v.  Boston  &  W.  R.  Co.,  supra. 

3  Id.  ;  Priestley  v.  Fowler,  3  M.  &  W.  1. 


Chap.  XVII.  §  10.]  NEGLIGENCE.  331 

servant,  the  generally  received  rule  appears  to  have  been 
that  the  term  '  fellow-servant '  included  all  who  served  the 
same  master,  worked  under  the  same  control,  derived  au- 
thority and  compensation  from  the  same  source,  and  were 
engaged  in  the  same  general  business,  though  it  might  be 
in  different  grades  or  departments  of  it ;  ^  though  some  of 
the  American  courts  have  strongly  maintained  that  the 
parties  are  not  fellow-servants  if  the  person  through  whose 
negligence  the  injury  was  sustained  is  superior  in  author- 
ity and  rank  to  the  person  injured.^ 

This  subject  of  a  fellow-servant's  negligence,  touching 
the  liability  of  the  employer,  is  now,  however,  generally 
regulated  by  statutes.  These  have  materially  changed  the 
common  law,  in  favor  of  the  injured  servant. 

§  10.     Of  Notice. 

It  is  a  well-settled  rule  of  law  that  if  facts  are  brought 
to  the  knowledge  of  a  person  which  would  put  him,  as  a 
man  of  common  prudence,  upon  inquiry,  he  is  bound  to 
inquire  ;  and,  if  he  fail  to  do  so,  he  will  be  chargeable  with 
notice  of  what  he  might  have  learned  upon  examination.^ 
There  may,  it  should  be  remembered,  be  negligence  in  not 
knowing,  as  well  as  in  knowing  and  not  avoiding  danger.* 
In  general,  therefore,  where  a  defendant's  liability  for 
negligence  depends  upon  his  knowledge  of  a  particular 
fact,  it  is  enough  that  facts  have  been  brought  to  his 
attention  of  such  a  nature  as,  if  reasonably  pursued,  would 

1  Story,  Agency,  §  453  d,  note,  8th  ed. 

2  Pittsburgh  K.  Co.  v.  Devinney,  17  Ohio  St.  197,  210  ;  Chicago 
Ry.  Co.  V.  Ross,  112  U.  S.  377. 

3  Warren  v.  Swett,  31  N.  H.  332 ;  Cambridge  Bank  v.  Delano,  48 
N.  Y.  326  ;  Willis  v.  Vallette,  4  Met.  (Ky.)  186  ;  Kennedy  v.  Green, 
3  Mylne  &  K.  699  ;  1  Story's  Equity,  pp.  404,  405,  note,  13th  ed. 

*  See  Mersey  Docks  v.  Gibbs,  L.  R.  1  H.  L.  93  ;  ante,  p.  286,  note. 


332  LAW  OF  TORTS.  [Part  III. 

have  led  to  a  knowledge  of  the  matter  in  question.  A 
failure  to  make  inquiry  under  such  circumstances  will  be 
evidence  of  negligence,  unless  the  person  has  been  misled 
by  the  opposite  party.^ 

§  11.     Of  Contributory  Negligence,  or  Negligence 

AS  Defence. 

Generally  speaking,  it  is  a  defence  to  an  action  of  tort 
that  the  negligence  of  the  plaintiff  '  contributed '  to  pro- 
duce the  damage  of  which  he  complains.^  The  reason  of 
this  lies  in  the  consideration  that  a  man  is  not  liable  for 
damage  which  he  has  not  caused  ;  ^  or,  conversely,  the  law 
holds  men  liable  for  those  wrongs  alone  which  they  have 
caused.  If  the  defendant  did  not,  either  personally 
or  by  another  under  his  express  or  implied  authority, 
cause  the  damage,  he  is  not  liable ;  and  it  is  part  of  the 
plaintiff's  case  to  show  that  the  defendant  caused  the 
damage  of  which  he  complains.^  Now,  if  there  inter- 
vened between  the  act  or  omission  of  the  defendant  and 
the  damage  sustained  an  independent  act  or  perhaps 
omission  which,  in  the  sense  of  a  cause,  contributed  to 
effect  the  damage,  it  follows  that  the  misfortune  might 
not  have  happened  but  for  that  act  or  omission  ;  and 
hence  the  plaintiff  cannot  prove  that  the  defendant  caused 
the  harm.^ 

But  an  act  or  an  omission  may  be  said  to  '  contribute ' 

1  See  ante,  pp.  37  et  seq. 

2  Murphy  v.  Deane,  101  Mass.  455. 

^  The  word  'cause'  when  here  used  alone  =  'proximate  cause.* 
*  Murphy  v.  Deane,  supra.     The  liability  of  a  master  for  the  (in 

fact)  unauthorized  torts  of  his  servant,  or  of  a  principal  for  the  like 

torts  of  his  agent,  stands  on  special  grounds. 

5  With  this  doctrine  of  contributory  negligence  the  Admiralty  rule 

dividing  the  loss  in  cases  of  mutual  negligence  may  be  contrasted. 


Chap.  XVII.  §  11.1  NEGLIGENCE.  333 

to  a  result  as  well  when  it  does  not  stand  in  the  relation 
of  a  cause  to  that  result  as  when  it  does ;  and  the  term 
'  contribute  '  or  '  contributory '  is  in  fact  sometimes  used 
of  situations  in  which  there  is  no  connection  of  cause  and 
effect  recognized  by  law,  that  is,  in  cases  in  which  the 
contributory  act  or  omission  is  not  '  causa  proxima '  as  it 
must  be  to  have  any  legal  consequences,  but  is  only 
'  causa  remota.'  '  Causa  proxima,  non  remota,  spectatur.' 
When  the  term  in  question  is  used  in  this  broader  sense, 
it  will  then  be  necessary  to  understand  that  only  such 
contributory  act  or  omission  as  may  be  considered  a 
proximate  cause  ^  of  the  misfortune  complained  of  can 
bar  the  action.  But  the  stricter  use  of  the  term  as  causa 
proxima  is  the  more  common  and  better  use.  In  some 
cases,  the  situation  may  be  such  that  the  plaintiff  cannot 
recover  even  when  the  defendant's  fault  was  adequate  to 
produce  the  injury  without  the  plaintiff's  negligence,  as 
in  certain  cases  of  collision  where  the  fault  on  each  side 
is  contemporaneous.^  But  in  no  case  can  the  plaintiff 
recover  where  the  evidence  falls  short  of  showing  that 
the  defendant's  act  or  omission  proximately  caused  the 
injury. 

On  the  other  hand,  conditions  (remote  causes)  must  not 
be  confounded  with  proximate  causes.^  The  mere  fact  that 
a  person  or  his  property  is  in  an  improper  position,  when,, 
if  he  had  not  been  there,  no  damage  would  have  been  done 
to  him,  does  not  preclude  him  from  recovering.^  Such 
circumstance  is  only  a  condition  to  the  happening  of  the 
damage,  not  a  cause  of  it.^  The  misfortune  may  have  been 
a  very  unnatural  and  extraordinary  result  of  the  situation, 
not  to  be  foreseen  in  the  light  of  ordinary  events ;  and, 

1  Not  necessarilj'  as  the  only  one. 

2  Murphy  v.  Deane,  101  Mass.  455,  464,  465. 

*  Newcomb  v.  Boston  Protective  Dept.,  146  Mass.  596. 

*  Id.  6  Id. 


334  LAW  OF  TORTS.  [Part  III. 

when  that  is  the  case,  the  fact  that  the  person  or  property 
was  in  the  particular  situation  is  not  in  contemplation  of 
law  a  cause  of  the  damage.  A  man  may  in  the  day-time 
fall  asleep  in  the  country  highway,  or  leave  his  goods 
there,  and  recover  for  injury  by  another's  driving  care- 
lessly over  him  or  them  ;  since,  though  the  position  occu- 
pied is  a  condition  to  the  damage,  the  damage  is  not  the 
natural  result  of  the  act.^ 

The  law  therefore  considers  whether  the  conduct  of  the 
plaintiff  had  a  natural  tendency,  such  as  exists  between 
cause  and  effect,  to  place  the  party  or  his  property  in  the 
direct  way  of  the  danger  which  resulted  in  the  disaster. 
If  it  had  not,  it  did  not,  in  the  sense  of  a  cause,  contrib- 
ute to  the  injury.  For  example :  The  defendant  sails  a 
vessel  in  such  a  careless  manner  as  to  cause  a  collision 
with  another  vessel  on  which  the  plaintiff  is  a  passenger  ; 
the  plaintiff  at  the  time  standing  in  an  improper  place  for 
passengers,  to  wit,  near  the  anchor,  which  is  struck  by  the 
defendant's  boat  and  caused  to  fall  upon  the  plaintiff's  leg, 
breaking  it.  The  defendant  is  liable  ;  the  plaintiff's  stand- 
ing in  the  improper  position  not  contributing,  in  the 
stricter  sense,  to  the  injury,  since  it  would  not  be  the 
natural  and  probable  result  that  one  standing  there  would 
be  hurt  by  a  collision.^  Again  :  The  defendant  driving 
carelessly  along  the  highway  runs  against  and  injures  the 
plaintiff's  donkey,  straying  improperly  therein,  and  fet- 
tered in  his  forefeet  so  as  not  to  be  able  to  move  with 
freedom.  This  is  a  breach  of  duty  to  the  plaintiff;  the 
latter's  act  not  contributing,  in  the    same  sense,  to  the 

1  See  the  remarks  of  Parke,  B.  in  Davies  v.  Mann,  10  M.  &  W.  546, 
549. 

2  Greenland  v.  Chaplin,  5  Ex.  243.  Or,  as  Pollock,  C.  B.  sug- 
gested, the  plaintiff  could  not  have  foreseen  the  consequences  of  stand- 
ing where  he  did  ;  that  is,  such  consequences  were  unusual,  not'  the 
common  effect  of  such  an  act. 


Chap.  XVII.  §  11.]  NEGLIGENCE.  335 

damage.^  Again :  The  plaintiff's  vehicle,  improperly 
placed  in  the  highway,  is  run  into  negligently  by  the 
defendant's  team.  The  plaintiff  is  not  disentitled  to 
recover  because  of  the  position  of  his  vehicle.^ 

In  accordance  with  the  same  principle,  a  traveller  may 
be  riding  a  horse  or  in  a  carriage  which  he  had  no  right  to 
take  or  use,  or  on  a  turnpike  without  payment  of  toll,  or 
with  a  speed  forbidden  by  law,  or  upon  the  wrong  side  of 
the  road  ;  or  his  horses  may  be  standing  in  the  street  of  a 
town,  without  his  attending  by  them  and  keeping  them 
under  his  command  as  the  law  requires  ;  in  none  of  these 
cases  is  his  right  of  action  for  any  injury  he  may  sustain 
by  the  negligent  conduct  of  another  affected  by  these  cir- 
cumstances. He  is  none  the  less  entitled  to  recover,  un- 
less it  appear  that  his  own  negligence  or  fault  contributed 
as  a  proximate  cause  to  the  damage.^ 

And  the  same  is  equally  true  though  the  plaintiff,  in- 
stead of  being  guilty  of  negligence  merely,  is  a  positive 
trespasser,  as  the  examples  elsewhere  given  of  parties  in- 
jured by  savage  dogs  or  spring-guns  while  trespassing  by 
day  upon  the  defendant's  premises  clearly  show  ;  *  for  it 
is  not  the  natural  or  usual  effect  of  trespassing  in  the  day- 
time (not  feloniously)  that  the  party  should  be  bitten  by  a 
savage  dog  not  known  of  before  the  entry,  or  maimed 
by  the  discharge  of  a  hidden  gun.  Wrongful  acts  or 
omissions  cannot  be  set  off  against  each  other,  so  as  to 
make  the  one  excuse  the  other,  unless  they  stand  respec- 
tiveljMU  the  situation  of  true  causes  to  the  damage. 

In  this  connection  attention  may  be  called  to  certain 
cases  of  injury  sustained  on  Sunday  through  the  defend- 
ant's negligence  by  a  plaintiff  engaged  in  acts  neither  of 

1  Davies  v.  Mann,  10  M.  &  W.  546. 

2  Newcomb  v.  Boston  Protective  Dept.,  146  Mass.  596. 
8  Norris  v.  Litchfield,  35  N.  H.  271,  Bell,  J. 

*  Bird  V.  Holbrook,  4  Biug.  628  ;  ante,  pp.  315,  316. 


336  LAW  OF  TORTS.  [Part  III. 

necessity  nor  of  charity ;  in  other  words,  in  acts  rendered 
unlawful  by  statute.  By  many  of  the  courts  it  is  held 
that  tlie  plaintiff  is  not  thereby  precluded  from  recovering 
for  damage  sustained,  in  the  absence  of  explicit  language 
to  that  effect  in  the  statute  ;  and  this  on  the  ground  that 
the  mere  doing  of  the  illegal  act  is  not,  or  may  not  be, 
contributory  in  the  proper  sense  to  tlie  damage  sustained.^ 
For  example :  The  defendant,  a  town,  bound  to  keep  a 
certain  bridge  in  repair,  negligently  allows  it  to  get  out  of 
good  order  ;  and  the  plaintiff,  without  notice  of  the  con- 
dition of  the  bridge,  in  attempting  to  drive  cattle  over  it 
to  market  on  Sunday  breaks  through  the  bridge,  several 
of  his  cattle  being  killed  and  others  hurt  thereby.  The 
defendant  is  guilty  of  a  breach  of  duty  to  the  plaintiff, 
and  liable  to  him  for  the  damage  sustained  ;  the  violation 
of  the  Sunday  law  not  properly  coutributing  to  the  result, 
since  it  is  not  the  natural  or  usual  result  of  travelling 
on  Sunday  that  damage  should  follow.^ 

This  is  clearly  correct  in  principle,  in  the  absence  of 
language  of  the  statute  plainly  intended  to  prohibit  all 
actions  for  damage  sustained  on  Sunday,  except  such 
as  is  caused  without  any  violation  of  law  by  the  injured 
party  ;  but  the  contrary  rule  prevails,  or  has  prevailed, ' 
in  some  of  the  States.^  This  contrary  rule,  however,  is 
considerably  narrowed  by  the  courts  which  adhere  to  it. 
It  is  considered  not  to  apply  to  cases  in  which  the  def  end- 

1  Sutton  V.  Wauwatosa,  29  Wis.  21  ;  s.  c.  L.  C.  Torts,  711  ;  Moh- 
ney  v.  Cook,  26  Penn.  St.  342  ;  Corey  v.  Bath,  35  N.  H.  530  ;  Carrol 
V.  Staten  Island  R.  Co.,  58  N.  Y.  126. 

'^  Sutton  V.  Wauwatosa,  supra. 

*  Bosworth  V.  Swansea,  10  Met.  363  ;  Jones  v.  Andover,  10  Allen, 
18;  Connolly  v.  Boston,  117  Mass.  64.  See  however  Newcomb  y.  Bos- 
ton Protective  Dept.,  146  Mass.  596,  which  in  principle  is  opposed  to 
these  cases.  The  law  of  the  State  has  been  changed  by  statute 
recently. 


Chap.  XVII.  §  11.]  NEGLIGENCE.  337 

ant  has  misused  property  of  the  plaintifif  hired  on  Sunday.^ 
So  too  it  is  held  that  one  who  is  walking  on  the  highway 
on  Sunday,  simply  for  exercise  and  fresh  air,  may  recover 
against  a  town  for  negligence  whereby  he  has  sustained 
damage.^ 

It  is  laid  down  in  certain  cases  that,  if  the  plaintiff 
could  liaA'e  avoided  the  disaster  by  the  exercise  of  '  due 
care,'  he  is  not  entitled  to  complain  of  the  negligence  of 
the  defendant.^  This  is  not  intended,  however,  to  sug- 
gest a  general  test  of  liability.  In  the  case  of  the  fettered 
donkey  above  stated,  the  plaintiff  might  have  avoided  the 
effect  of  the  defendant's  negligence  by  keeping  his  animal 
at  home,  but  he  was  still  held  entitled  to  recover.  The 
meaning  of  the  rule  in  question  is  that  in  the  moment  of 
actual  peril  the  plaintiff"  must  not  be  guilty  of  failing  to 
exercise  such  reasonable  care  under  the  circumstances  as 
he  can,  to  protect  himself  against  damage.  Being  at 
hand  at  the  moment,  the  plaintiff  might  be  able  to  prevent 
harm,  and  must  govern  himself  accordingly. 

One  who,  however,  in  a  sud'den  emergency  loses  one's 
presence  of  mind  through  the  misconduct  of  the  defendant, 
and  while  in  such  loss,  and  owing  to  it,  falls  into  danger 
and  is  hurt,  is  not  thereby  guilty  of  want  of  due  care  or  of 

^  Hall  V.  Corcoran,  107  Mass.  2,51,  overruling  Gregg  ?'.  Wyman,  4 
Gush.  322,  on  authority  of  which  Wheldon  v.  Chappel,  8  R.  I.  230, 
was  decided.  See  also  Woodman  v.  Hubbard,  25  N.  H.  67  ;  Morton 
V.  Gloster,  46  Maine,  520. 

2  Hamilton,  v.  Boston,  14  Allen,  475.  See  further  Cox  v.  Cook,  id. 
165  ;  Feital  v.  Middlesex  R.  Co.,  109  Mass.  398. 

3  Haley  v.  Case,  142  Mass.  316,  321  ;  Ferren  v.  Old  Colony  R.  Co., 
143  Mass.  197  ;  Ciriack  v.  Merchants'  Woolen  Co.,  151  Mass.  152;  s.  c. 
146  Mass.  182  ;  Russell  v.  Tillotson,  140  Mass.  201  ;  Butterfield  v. 
Forrester,  11  East,  60 ;  Bridge  v.  Grand  June.  Ry.  Co.,  3  M.  &  W.  244  ; 
Davies  v.  Mann,  10  M.  &  W.  546  ;  TufT  v.  Warman,  5  C.  B.  N.  s.  573. 
Exch.  Ch.  ;  Caswell  v.  Worth,  5  El.  &  B.  849.     See  infra,  pp.  340,  341. 

22 


o38  LAW   OF   TORTS  [Part  IU 

contributory  negligence.^  The  defendant's  unlawful  act 
has  caused  the  loss  of  presence  of  mind,  and  what  happens 
afterwards  is  but  the  natural  effect  of  the  act.  For  exam- 
ple :  The  defendant  is  carelessly  di'iving  an  express  wagon 
along  the  sidewalk  of  the  street  of  a  city,  at  a  rapid 
rate,  which  suddenly  comes  up  behind  the  plaintiff,  when 
she  instinctively  springs  aside  to  escape  danger,  and  in  so 
doing  strikes  her  head  agamst  the  wall  of  a  building,  and 
is  hui't.  The  defendant  is  liable.^  Again  :  The  defend- 
ant, a  railway  compan^^,  negligently  leaves  the  gates  of  a 
level-crossing  open,  and  the  plaintiff  is  thereby  misled  into 
crossing,  supposing  it  to  be  safe  to  cross,  but  not  using 
his  faculties  as  well  as  he  might  have  done  under  other 
circumstances ;  and  he  is  hurt  by  a  passing  train.  The 
defendant  is  liable.^ 

On  the  other  hand,  it  is  laid  down  in  certain  cases  thai, 
the  plaintiff  ma}^  be  entitled  to  recover,  if  the  defendant 
might,  by  the  exercise  of  '  due  care  '  on  his  part,  have 
avoided  the  consequences  of  the  negligence  of  the  plain- 

1  Comp.  The  By  well  Castle,  4  P.  Div.  219  ;  Sweeny  v.  Old  Colony 
R.  Co.,  10  Allen,  368  ;  s.  c.  L.  C.  Torts,  660.  For  a  shock  to  the  ner- 
vous system  and  consequent  illness  from  fright  caused  by  the  defend- 
ant's negligence,  where  there  is  no  impact,  it  is  held  that  there  is  no 
liability.  The  damage  is  deemed  'remote.'  That  is,  the  supposed 
cause  was  not  a  legal  cause,  since  its  operation  would  depend  upon  in- 
dividual susceptibilities,  and  would  not  be  uniform.  Victorian  Ey 
Comm'rs  v.  Conltas,  13  A|>p.  Cas.  222,  fright  by  narrow  escape  from 
collision.  Such  a  case,  however,  should  not  be  confounded  with  an 
assault ;  there  the  putting  in  fear  is  intentional. 

2  Coulter  V.  American  Exp.  Co.,  56  N.  Y.  .585.  See  also  Johnson 
V.  West  Chester  Ry.  Co.,  70  Penn.  St.  357  ;  Galena  R.  Co.  v.  Yarwood, 
17  111.  509. 

3  Northeastern  Ry.  Co.  v.  Wanless,  L.  R.  7  H.  L.  12  ;  Sweeny  v. 
Old  Colony  R.  Co.,  supra.  See  Davey  v.  Southwestern  Ry.  Co.,  12  Q.  B. 
Div.  70  ,  Dublin  &  Wicklow  Ry.  Co.  v.  Slattery,  3  App.  Cas.  1155  ; 
ante,  p.  317. 


Chap.  XVII.  §  11]  NEGLIGENCE.  339 

tiff.^  This  too  cannot  be  intended  to  suggest  a  general 
test  of  liability.  In  the  case  of  one  who  in  the  want  of 
due  care  has  fallen  through  a  trap-door  left  open  by  the 
defendant  negligently,  the  defendant  clearly  might  have 
avoided  the  consequence  of  the  plaintiff's  negligence  by 
having  closed  the  door ;  and  yet  he  is  not  liable.  The 
meaning  of  the  rule  is  that  where  the  plaintiff  was  not  at 
hand,  so  as  to  prevent  the  damage,  the  defendant  will  be 
liable  if  by  due  care  he  might  have  prevented  the  harm 
and  did  not  exercise  it.  The  question  would  be  proper 
in  a  case  like  that  of  the  fettered  donkey.-^  Again  :  The 
defendant  is  pilot  of  a  steamer  on  the  Thames,  which  runs 
down  the  plaintiff's  barge.  There  is  no  look-out  on  the 
barge,  but  there  is  evidence  that  the  steamer  might  easily 
have  cleared  her.  It  is  proper  to  leave  it  to  the  jury  to 
say  whether  the  want  of  a  look-out  is  negligence  in  the 
plaintiff,  and  if  so,  whether  it  directly  contributed  to  the 
damage  done  ;  the  negligence  of  the  plaintiff',  if  found, 
not  barring  his  action  if  tlie  defendant  might  have  avoided 
the  consequences  of  it  by  the  exercise  of  due  care.^  If 
the  rule  referred  to  were  applied  to  cases  of  simultaneous 
negligence,  at  the  moment  of  disaster  either  party  to  a 
collision  caused  by  their  joint  carelessness  might  be  enti- 
tled to  recover  against  the  other ;  while,  in  trutli,  neither 
can  recover.* 

1  Tuff  V.  Wai-man,  5  C.  B.  n.  s.  573,  Exch.  Ch.  leading  case. 

2  See  also  Radley  v.  London  &  Northwestern  Ry.  Co.,  1  App.  Cas. 
754,  reversing  L.  R.  10  Ex.  100,  and  restoring  L.  R.  9  Ex.  71,  a  very 
instructive  case.  See  especially  p.  760,  Lord  Penzance,  quoted  in  Pol- 
lock, Torts,  p.  378.  It  is  there  stated  that  if  the  defendant  'might  at 
this  stage  of  the  matter  [the  actual  emergency]  by  ordinary  care  have 
avoided  all  accident,  any  previous  negligence  of  the  plaintiffs  would  not 
preclude  them  from  recovering.' 

3  Tuff  V.  Warman,  5  C.  B.  N.  s.  573. 

*  Murphy  v.  Deane,  101  Mass.  455,  464,  465.  Certain  of  the  lan- 
guage in  Tuff  V.  Warman,  supra^  is  here  criticised,  but  not  so  as  to 
affect  the  example  of  the  text. 


840  LAW   OF   TORTS.  [Part  III. 

Closely  connected  with  the  subject  of  contributory  neg- 
ligence in  the  plaintiff,  but  yet  in  substance  distinct  from 
it,  is  the  case  of  the  plaintiff's  consent.  '  Volenti  non  fit 
injuria.'  But  to  act,  knowing  of  the  existence  of  danger, 
is  not  necessarily  to  consent  to  the  harm  which  may 
follow.  '  Scienti '  is  not  equivalent  to  '  volenti.'  ^  A 
man  may  consent  to  take  a  dangerous  position,  because 
he  has  been  persuaded  that  no  harm  will  follow,  and, 
if  he  is  a  servant,  fears  that  otherwise  he  may  be  dis- 
charged ;  and  in  England,  by  virtue  of  statute,  a  servant 
who  refused  consent  to  the  risk  may  sue  for  injuries. 
For  example  :  The  defendants  are  contractors  doing  work 
above  the  floor  where  the  plaintiff"  is  by  his  own  employer 
directed  to  work,  the  place  of  the  plaintiff  being  one  of 
exposure  by  reason  of  the  nature  of  the  work  which  the 
defendants  are  doing  ;  the  plaintiff  being  aware  of  the 
exposure,  but  making  complaint  of  it,  though  in  vain, 
and  not  being  guilty  of  contributory  negligence.  By  the 
defendants'  negligence  a  piece  of  iron  is  dropped  upon 
and  injures  the  plaintiff.  The  defendants  may  be  found 
guilty,  the  plaintiff's  knowledge  not  amounting  to  con- 
sent, and  not  in  such  a  case  barring  an  action.'^ 

So  it  is  held  in  England.  American  courts,  however, 
have  held  that  if  the  plaintiff  knew,  and  knowing  ap- 
preciated, the  danger  to  which  he  was  exposed,  he  can- 
not recover  for  the  injury  sustained ;  ^  this  on  the  ground, 

1  Thrussell  v.  Handyside,  20  Q.  B.  D.  359,  364 ;  Thomas  v.  Quarter- 
maine,  18  Q.  B.  Div.  685,  692 ;  Yarmouth  v.  France,  19  Q.  B.  Div. 
647,  659  ;  Osborne  v.  Northwestern  Ry.  Co.  21  Q.  B.  D.  220  ;  Roberts 
V.  Smith,  2  H.  &  N.  213,  Exch.  Ch.,  ante,  p.  327.  But  see  the  (in- 
dividual) opinion  of  Lord  Bramwell  in  Membury  v.  Great  Western 
Ry.  Co.,  14  App.  Cas.  179,  186. 

2  Thrussell  v.  Handyside,  supra,  distinguishing  Woodley  v.  Metro- 
politan Ry.  Co.,  2  Ex.  D.  384,  and  other  cases.  Thrussell  v.  Handyside 
is  further  important  as  adopting  the  broad  ground  of  liability  for  negli- 
gence laid  down  in  Heaven  v.  Pender,  11  Q.  B.  Div.  503,  509. 

8  Mellor  V.  Merchants'  Manuf.  Co.,  150  Mass.  362  ;  Ciriack  v.  Her- 


Chap.  XVII.  §  11.]  NEGLIGENCE.  341 

not    indeed    of   consent,    but    of    adequate    knowledge. 
He  should  not  expose  himself  to  the  consequences  of  a 
danger   which    he    fully   understands ;    even    a   servant 
should  refuse  to  obey  orders  in  such  a  case.^     If  this 
seems  like  harsh  doctrine,  its  mitigating  feature  is  that  if 
the  plaintiff,  though  he  knew  there  was  danger,  did  not 
appreciate  it,"  and  especially  if  for  inexperience  or  mental 
deficiency  he   could  not  fully  appreciate  it,  he  may  re- 
cover  if  the  defendant  was  guilty  of  negligence.     For 
example  :  The  plaintiff  is  a  boy  twelve  years  of  age,  in 
the  employ  of  the  defendants,  proprietors  of  a  woollen  mill, 
and  is  of  less  than  average  intelligence  to  the  defendants' 
knowledge.     He  is  sent  by  the  defendants'  overseer  in 
haste  to  a  dimly  lighted  part  of  a  room  between  running 
gear  of  the  machinery  so  placed  that  it  might  easily  catch 
the  plaintiff's  clothing  and  pull  him  into  the  wheels.     He 
has  been  employed  in  the  room  for  two  months,  though  not 
in  that  part  of  it  to  which  he  is  now  sent,  and  the  machinery 
there  is  in  plain  sight.     His  clothing  is  caught  in  the  gear- 
ing, and  he  is  injured.     The  jury  may  find  that  the  over- 
seer should  have  warned  the  plaintiff  of  the  danger,  and 
may  give  damages  to  him  for  the  injury  sustained.^ 

chants'  Woolen  Co.,  146  Mass.  182  ;  s.  c.  151  Mass.  152  ;  Crowley  v. 
Pacific  Mills,  148  Mass.  228  ;  Ferren  v.  Old  Colony  R.  Co.,  143  Mass. 
197;  Haley  i;.  Case,  142  Mass.  316;  Russell  v.  Tillotson,  140  Mass. 
201  ;  Taylor  u  Carew  Manuf.  Co.,  id.  150  ;  Williams  v.  Churchill,  137 
Mass.  243;  Coombs  v.  New  Bedford  Cordage  Co.,  102  Mass.  572; 
Buckley  v.  Gutta  Percha  Manuf.  Co.,  113  N.  Y.  540.  See  also  cases 
in  note  3,  infra.     But  differences  of  stahite  should  be  noticed. 

^  Haley  v.  Case,  supra,  at  p.  322.  The  objection  is  not  to  the  rule 
which  requires  of  the  plaintiff  'due  care,'  but  to  holding  that  if  the 
plaintiff  fully  understood  the  danger  he  cannot  recover.  In  such  cases 
it  ought  rather  to  be  left  to  the  jury,  it  should  seem,  to  say  whether 
he  exercised  due  care.     See  Thrussell  v.  Handyside,  at  p.  364. 

2  Ferren  v.  Old  Colony  R.  Co.,  143  Mass.  197. 

3  Ciriack  v.  Merchants'  Woolen  Co.,  151  Mass.  152.  See  also  Coombs 
V.  New  Bedford  Cordage  Co.,  102  Mass.  572,  598  ;  Wheeler  v.  Wason 


342  LAW  OF  TORTS.  [Part  IIL 

In  some  States  a  doctrine  of  '  comparative  negligence ' 
takes  the  place  of  the  doctrine  of  contributory  negligence. 
It  has  been  stated  from  the  bench  as  follows  :  Where  there 
has  been  negligence  in  both  plaintiff  and  defendant,  still 
the  plaintiff  may  recover  if  his  negligence  was  slight,  and 
that  of  the  plaintiff  gross  in  comparison.  And  this  rule 
has  been  extended  to  cases  in  which  the  negligence  of  the 
plaintiff  has  contributed,  in  some  degree,  to  the  injury 
complained  of.^  The  defendant's  negligence,  however, 
must  stand  as  a  cause  towards  the  injury.^  Accordingly 
it  was  laid  down,  of  death  caused  at  a  railroad  crossing, 
that  if  the  deceased  was  guilty  of  negUgeuce  in  not  ob- 
serving the  precautions  which  an  ordinarily  prudent  man 
would  observe  before  attempting  to  cross  the  track,  then 
the  real  question  was,  whether  his  negligence  in  that  re- 
spect was  slight  in  comparison  with  that  of  the  defendants, 
if  they  were  guilty  of  negligence  at  all. ^ 

§  12.     Of  Intervening  Forces. 

Thus  far  of  the  contributory  acts  or  omissions  of  the 
plaintiff.  But  it  may  be  that  between  the  wrongful  act  of 
the  defendant  and  the  damage  sustained  by  the  plaintiff 
there  intervened  an  act  or  agency  of  a  third  person,  in  no 
way  probable  and  not  in  fact  anticipated,*  which  directly 
produced  the  damage.  If  this  be  the  case,  and  the  mis- 
fortune would  not  have  followed  without  it,  the  defendant, 

Manuf.  Co.,  1  ?.5  Mass.  294  ;  Glover  v.  Dwiglit  Manuf.  Co.,  148  Mass.  22 ; 
Russell  V.  Tillotson,  supra  ;  "Williams  v.  Churchill,  .supra  ;  Swoboda  v. 
Ward,  40  Mich.  420  ;  Huizega  v.  Cutler  Lumber  Co.,  51  Mich.  272  ; 
Dowliugv.  Allen,  74  Mo.  13  ;  Buckley  v.  Gutta  Percha  Manuf.  Co., 
113  N.  Y.  540. 

1  Chicago  &  Q.  R.  Co.  v.  Van  Patten,  64  111.  510,  517,  Scott,  J. 

2  Id.  at  p.  514.  3  Id.  p.  517. 

*  See  Clark  v.  Chambers,  3  Q.  B.  D.  327,  as  to  damage  resulting 
fi'om  removal  by  a  third  person  of  obstructions  unlawfully  put  in  the 
highway  by  the  defendant,  he  being  held  liable. 


Chap.  XVII.  §  12.]  NEGLIGENCE.  343 

similarly  it  seems,  will  not  be  liable.  For  example  :  The 
defendant  wrongfully  sells  gunpowder  to  the  plaintiff,  a 
boy  eight  years  old,  who  takes  it  home  and  puts  it  into  a 
cupboard,  where  it  lies  for  more  than  a  week,  with  the 
knowledge  of  the  child's  parents.  The  boy's  mother  now 
gives  some  of  the  powder  to  him,  which  he  fires  oft'  with 
her  knowledge.  This  is  done  a  second  time,  when  the 
child  is  injured  by  the  explosion.  The  defendant  is  not 
liable.-^ 

Indeed,  the  defendant  can  never  be  liable  when  any- 
thing out  of  the  natural  and  usual  coarse  of  events  un- 
expectedly arises  and  operates  in  such  a  way  as  to  make 
the  defendant's  negligence,  otherwise  harmless,  productive 
of  injury.  A  whirlwind  does  not  usually  arise  on  a  quiet 
day,  and  hence,  though  a  person  should  build  a  small  fire 
in  a  country  road,  contrary  to  law,  on  a  mild  day,  he 
would  not  (probably)  be  liable  for  the  consequences  of  a 
whirlwind  suddenly  springing  up  and  scattering  the  fire, 
to  the  damage  of  another.'^ 

The  case  will  be  different  if  the  party  acted  with  a  real 
or  a  presumable  knowledge  of  the  intervening  act,  agency, 
or  force  of  nature.  In  this  case  he  will  be  liable.  For 
example  :  The  defendant  shoots  a  pistol  against  a  pol- 
ished surface  in  a  thoroughfare,  at  such  an  angle  as  to 
render  it  likely  that  the  ball  will  glance  and  hit  some  one. 
It  does  glance  and  hits  the  plaintiff.  The  defendant  has 
caused  the  injury  and  is  liable.^     Again  :  The  defendant 

1  Carter  v.  Towne,  103  Mass.  507. 

2  Comp.  Insurance  Co.  v.  Tweed,  7  Wall.  44.  For  all  that  happens 
in  the  regular  course  of  things,  under  the  conditions  as  the}'  exist  at  the 
time  of  the  act  or  omission  in  question,  the  defendant  will  be  liable, 
though  the  particular  harm  resulting  may  have  been  altogether  im- 
probable. See  the  important  case  of  Smith  v.  Southwestern  Ry.  Co., 
L.  R.  5  C.  P.  98,  and  6  C.  P.  14,  Exch.  Ch. 

3  This  example  is  fairly  borne  out  by  Scott  v.  Shepherd,  3  Wils, 
403. 


344  LAW   or   TORTS.  [Pakt  III 

throws  a  lighted  squib  iuto  a  market-house  on  a  fair-daj^, 
which  strikes  the  booth  of  A,  who  instinctively  throws  it 
out,  when  it  strikes  the  booth  of  B.  The  latter  casts  it  out 
in  the  same  manner,  and  it  now  striltes  the  plaintiff  in  the 
face,  injuring  him.  The  defendant  is  liable.^  Again: 
The  defendant  wrongfully  sells  a  mischievous  hair-wash  to 
the  plaintiff's  husband,  knowing  that  it  is  intended  for  the 
plaintiff's  use,  and  the  plaintiff'  is  injured  in  using  it.  The 
defendant  is  liable.^  Again  :  The  defendant,  a  manufac- 
turer of  drugs,  negligently  labels  a  jar  of  belladonna, 
put  up  by  him,  as  dandelion,  the  former  a  poisonous,  the 
latter  a  harmless,  drug.  The  jar  passes  from  the  defend- 
ant to  a  wholesale  dealer,  then  to  a  retail  dealer,  and  a 
portion  of  it  then  to  the  plaintiff,  who  buys  and  takes  it 
as  dandelion.  The  defendant  is  liable  ;  the*  intermediate 
parties  have  only  carried  out,  in  the  sale,  the  intention  of 
the  defendant.® 

In  cases,  however,  where  the  alleged  breach  of  duty  is 
directly  involved  in  a  breach  of  contract,  the  courts  quali- 
fiedly  deny  the  liability  of  the  defendant  to  any  one  ex- 
cept to  the  party  with  whom  he  made  the  contract,  —  a 
point  elsewhei'e  noticed.^  The  authorities  are  not  alto- 
gether consistent,  but  there  appears  to  be  an  agreement  in 
regard  to  cases  of  intended  harm  ;  and  the  general  result 
may  be  stated  to  be,  that  if  the  defendant  intended  or 
if  he  can  fairly  be  assumed  to  have  intended  the  acts 

1  Scott  V.  Shepherd,  3  Wils.  403. 

'^  George  v.  Sldvington,  L.  K.  5  Ex.  1.  See  Cann  v.  Willson,  39  Ch. 
D.  39,  43. 

3  Tliomas  v.  Winchester,  6  ¥.  Y.  397  ;  s.  c.  L.  C.  Tort.s,  602.  The 
reason  given  by  the  court,  however,  was  that  the  defendant,  being  en- 
gaged in  a  very  dangerous  business,  acted  at  his  own  peril.  Comp. 
Farrant  v.  Barnes,  11  C.  B.  n.  s.  553,  and  Brass  v.  Maitland,  6  El.  &B. 
470,  ante,  p.  296.  The  subject  is  well  discussed  in  2  Law  Quarterly 
Keview,  63-65  ;  Pollock,  Torts,  439  et  seq.,  2d  ed. 

*  Ante,  pp.  134,  135.     See  L.  C.  Torts,  617-619. 


Chap.  XVII.  §  12.]  NEGLIGENCE.  345 

of  the  intermediate  agency,  lie  will  be  liable,  though  his 
act  was  a  breach  of  contract  with  another.^  The  fact  of 
the  existence  of  a  duty  to  the  person  with  whom  he  con- 
tracted is  not  inconsistent  with  the  existence  of  another 
duty  respecting  the  same  thing.  The  duty  to  forbear  to 
do  intentionally  a  thing  obviously  harmful,  if  not  properly 
done,  preceded  the  formation  of  the  contract ;  and  it  is 
difficult  to  see  how  that  duty,  owed  to  all  persons,  could, 
by  a  contract  made  with  one  or  several,  be  abrogated  as 
regards  others.'^ 

The  difficulty  is  with  cases  short  of  intention,  that  is, 
with  cases  of  negligence  only.  It  has  been  supposed  that 
if,  by  the  negligence  of  A,  a  contract  is  broken  between  B 
and  C,  the  injured  party  cannot  maintain  any  action 
against  A  ;  it  being  declared  that  no  duty  is  infringed  or 
exists  except  that  created  by  the  contract.  For  example  : 
The  defendant,  a  railway  company,  contracts  with  the 
plaintiff's  servant  to  carry  him  safely  to  a  certain  place, 
but  negligently  injures  him  on  the  way.  This  is  deemed 
no  breach  of  duty  to  the  plaintiff.^ 

There  is  grave  doubt,  however,  both  in  principle  and 
upon  authority,  whether,  apart  from  the  special  facts  in 
the  cases  just  referred  to,  the  rule  itself  upon  which  the 
decision  is  founded  can  be  supported.     A  railroad  com- 

1  See  Langridge  v.  Levy,  2  Mees.  &  W.  519;  s.  o.  4  Mees.  &  "W. 
338;  alsoCollis  v.  Selden,  infra,  and  George  v.  Skivington,  above  cited. 
Further  see  Heaven  v.  Pender,  11  Q.  B.  Div.  503,  514. 

2  See  1  Wms.  Saund.  474. 

3  Fairmount  Ry.  Co.  v.  Stutler,  54  Penn.  St.  375  ;  Alton  v.  Mid- 
land Ry.  Co.,  19  C.  B.  N.  s.  213.  But  see  1  Wms.  Saund.  474  ;  Pol- 
lock, Torts,  474,  2d  ed.  It  has  been  pointed  out  that  in  Winterbottom 
V.  Wright,  10  M.  &  W.  109,  and  Longmeid  v.  Holliday,  6  Ex.  701, 
generally  relied  upon  for  the  rule  under  consideration,  there  was  no  neg- 
ligence on  the  part  of  the  defendant ;  In  the  one  case  knowledge  of  the 
defect  not  being  alleged,  in  the  other  not  being  proved.  Pollock, 
Torts,  477,  2d  ed.     See  also  Collis  v.  Selden,  L.  R.  3  C.  P.  495. 


846  LAW   OF   TORTS.  [Part  IIL 

pany  or  other  person  would  not  (probably)  be  liable  to  a 
master  for  an  injury  wrongfully  done  to  a  servant,  with- 
out notice  of  the  relation  of  master  and  servant.-^  But  if 
there  is  a  duty  to  refrain  from  intentional  wrong,  it  is  not 
easy  to  see  why  there  may  not  be  a  duty  to  refrain  from 
negligence,  where  that  is  attended  with  notice  of  the  con- 
tract, that  is,  of  the  rights  of  the  plaintiff. 

As  a  question  of  authority,  there  are  cases  of  negligence 
entitled  to  great  weight  which  are  quite  inconsistent  with 
the  view  that  the  contract  creates  the  only  duty  that  exists 
in  such  situations.  For  example  :  The  defendant,  a  rail- 
way company,  contracts  with  the  plaintiff's  master,  with 
whom  the  plaintiff  is  to  travel  in  the  defendant's  coaches, 
to  carry  the  plaintiff's  luggage  to  a  certain  place,  which  the 
defendant,  through  negligence,  fails  to  do.  This  is  a 
breach  of  duty  to  the  plaintiff.^  Again  :  The  defendant, 
a  railway  company,  receives  the  plaintiff  into  one  of  its 
coaches,  on  a  ticket  bought  from  another  railway  com- 
pany, with  which  the  defendant  shares  the  profits  of 
traffic.  The  steps  of  the  defendant's  coaches  are  too  high 
for  persons  to  alight  easily  at  the  station,  which  is  owned 
by  the  other  company  ;  and  in  alighting  with  due  care  the 
plaintiff  is  hurt.  The  defendant  is  liable,  without  regard 
to  the  question  whether  the  plaintiff  had  contracted  with 
the  other  company.^ 

If  the  duty  resting  upon  the  defendant  be  that  of 
common  carrier  of  passengers,  or  of  goods,  the  carrier  or 

1  Comp.  such  cases  as  Blake  v.  Lanyon,  6  T.  R.  221. 

2  Marshall  v.  York  &  Newcastle  Ry.  Co.,  11  C.  B.  655  ;  Austin  v. 
Great  Western  Ry.  Co.  I.  R.  2  Q.  B.  442.  The  first  of  these  cases 
was  before  Alton  v.  Midland  Ry.  Co. ,  supra,  but  the  second  was  after- 
wards, and  in  it  Marshall's  Case  was  cited  with  approval  by  Black- 
burn, J.  See  also  Foulkes  v.  Metropolitan  Ry.  Co.,  5  C.  P.  Div.  157  ; 
Ames  V.  Union  R.  Co.,  117  Mass.  541  ;  and  cases  like  Henley  v.  Lyme 
Regis,  5  Bing.  91,  and  1  Bing.  N.  C.  222,  ante,  p.  312. 

^  Foulkes  V.  Metropolitan  Ry.  Co.,  supra. 


Chap.  XVII.  §  12.]  NEGLIGENCE.  347 

bailee  will  be  liable  for  the  damage  produced  by  a  breach 
of  his  contract,  due  to  his  own  negligence,  even  though  the 
negligence  of  a  third  person  should  contribute  to  the  dam- 
age sustained ;  for  the  party  was  bound  to  exercise  due 
care,  and  has  not  done  so.^  For  example  :  The  defend- 
ants, a  railroad  company,  contract  to  carry  the  plaintiff  to 
W,  but  on  the  way  the  train  carrying  the  plaintiff  is 
brought  into  collision  with  the  train  of  another  railroad 
company,  at  a  crossing,  through  the  negligence  of  the 
managers  of  both  roads,  and  the  plaintiff  suffers  injury 
thereby.  The  defendants  have  violated  their  duty  to  the 
plaintiff,  aud  are  liable  for  the  damage  sustained  by 
him.^ 

The  same  doctrine  would,  indeed,  apply  to  cases  aris- 
ing uuder  any  ordinary  absolute  contract  for  the  perform- 
ance of  a  specific  duty.  For  example  :  The  defendants 
contract  to  supply  the  plaintiffs  with  proper  gas  pipe. 
Gas  escapes  in  a  certain  room  from  a  defect  in  the  pipe 
provided,  a  third  person  negligently  enters  the  room  with 
a  lighted  candle,  and  an  explosion  takes  place.  The  de- 
fendants are  liable  for  the  loss  thereby  caused.^ 

The  rule  formerly  prevailed  in  England  that  a  passenger 
in  a  stage  or  railway  coach,  or  other  vehicle,  became  by 
the  act  of  obtaining  passage  '  identified  '  in  law  with  the 
driver  or  manager  of  the  vehicle.  The  effect  of  this  doc- 
trine was,  that  in  an  action  by  the  passenger  against  a 
third  person  for  negligence,  whereby  the  former  suffered 
damage  in  the  course  of  the  ride  or  journey,  negligence  on 
the  part  of  the  driver  or  manager  of  the  vehicle  in  which 
the  plaintiff  has  taken  passage,  contributing  to  the  mis- 
fortune, was  the  negligence  of  the  plaintiff".     The  plaintiff, 

1  Comp.  Burrows  v.  March  Gas  Co.,  I;.  R.  7  Ex.  96,  Exch.  Ch. 

2  Eaton  V.  Boston  &  L.  R.  Co.,  11  Allen,  500. 

,     8  Burrows  v.  March  Gas  Co.,  L.  R.  7  Ex.  96,  Exch.  Ch. 


348  LAW   OF  TORTS.  [Part  III. 

therefore,  was  not  entitled  to  recover,  though  he  might 
himself  have  been  free  from  fault. ^  This  doctrine  ob- 
tains in  some  of  our  courts.^  For  example  :  The  defend- 
ant, owner  of  a  stage-coach,  by  her  driver's  negligence 
runs  over  and  kills  the  plaintiff's  intestate,  while  he  is 
alighting  from  another  stage-coach  ;  which  latter  coach, 
by  the  negligence  of  the  driver,  has  stopped  at  an  im- 
proper place  for  alighting.  The  latter's  negligence  is 
properly  contri])utory,  but  the  deceased  was  not  person- 
ally at  fault.     The  defendant  is  deemed  not  liable.^ 

The  doctrine  was  much  criticised  and  often  denied  by 
other  courts  ;  *  and  in  the  form  above  presented  it  was  re- 
cently overruled  in  England.^  It  was  hard  to  understand 
how  the  plaintiff  could  be  considered  identified  with  the 
driver  of  the  carriage  when  the  driver  was  wholly  under 
the  control  of  another.  The  driver  could  not  be  the  pas- 
senger's servant  in  any  accurate  sense  in  such  a  case  ; 
since  the  essential  feature  of  the  relation  of  master  and 
servant  is  wanting,  to  wit,  authority  over  the  supposed 
servant.  And,  for  the  same  reason,  the  driver  could  not 
be  considered  as  the  passenger's  agent.  The  passenger 
could  not  contract  directly  with  the  driver  in  the  first  in- 
stance, or  require  him  to  go  or  to  stay ;    nor  could  he 

1  Thorogood  v.  Bryan,  8  0.  B.  115  ;  Armstrong  v.  Lancashire  Ry. 
Co.,  L.  R.  10  Ex.  47  ;  Cleveland  R.  Co.  v.  Terry,  8  Ohio  St.  570  ; 
Puterbaugh  v.  Reasor,  9  Ohio  St.  484  ;  Lockhart  v.  Lichtenthaler,  46 
Penn.  St.  151  ;  Smith  v.  Smith,  2  Pick.  621. 

2  See  cases  in  note  1,  supra. 

3  Thorogood  v.  Bryan,  supra. 

*  The  Milan,  Lush.  388;  Brown  v.  McGregor,  Hay  (Scotl.),  10; 
Little  V.  Hackett,  IIG  U.  S.  366  ;  Chapman  v.  New  Haven  R.  Co.,  19 
N.  Y.  341  ;  Coleman  v.  New  York  &  N.  H.  R.  Co.,  20  N.  Y.  492  ; 
Webster  v.  Hudson  River  R.  Co.,  38  N.  Y.  260  ;  Danville  Turnp.  Co. 
V.  Stewart,  2  Met.  (Ky.)  119. 

s  The  Bernina,  12  P.  Div.  58,  affirmed,  nom.  Mills  v.  Armstrong,  18 
App.  Cas.  1. 


Chap.  XVII.  §  12.]  NEGLIGENCE.  349 

compel  him  to  stop  by  the  way,  or  direct  him  to  take  a 
particular  road,  or  how  to  drive,  or  how  to  pass  a  coach 
or  an  obstruction.^  Instead  of  an  identification  between 
passenger  and  driver,  the  driver  himself  would  be  liable, 
with  the  other  wrong-doer,  to  the  passenger.^ 

If,  however,  the  passenger  were  himself  in  fault,  as  by 
participating  in  the  negligent  conduct  of  the  driver,  or  by 
directing  it  in  advance,  it  is  clear  that  he  could  not 
recover ;  supposing  the  negligence  to  have  contributed 
to  the  misfortune.  In  such  a  case  as  this,  he  makes  the 
driver,  pro  hac  vice,  his  servant,  and  may  therefore  be 
said  to  be  '  identified'  with  him. 

Upon  views  not  unlike  those  in  regard  to  the  supposed 
'  identification '  of  passenger  and  carrier,  the  negligence  of 
the  parent  or  guardian  or  other  person  in  charge  of  a  young 
child,  in  allowing  the  child  to  fall  into  danger,  has  some- 
times been  deemed  '  imputable '  to  the  child,  so  as  to 
affect  the  child  with  contributory  negligence  in  all  cases  in 
which  the  parent  or  guardian  would  in  the  same  situation 
be  barred  of  a  right  of  action.^  For  example :  The  de- 
fendants, a  railroad  company,  by  the  negligence  of  their 
servants  in  the  course  of  their  employment  and  the  con- 

1  Identification,  in  any  such  sense  as  making  the  driver  or  manager 
of  the  vehicle  the  servant  or  agent  of  the  passenger,  had  been  already 
repudiated  by  Pollock,  B.,  in  Armstrong  v.  Lancashire  E.  Co.,  L.  R. 
10  Ex.  47,  52. 

2  See  The  Bernina,  supra. 

3  See  Mangan  v.  Atterton,  L.  R.  1  Ex.  239  ;  Clark  v.  Chambers,  3 
Q.  B.  D.  327  ;  Waite  v.  Northeastern  Ey.  Co.,  El.  B.  &  E.  719  ;  Hughes 
V.  Macfie,  2  H.  &  C.  744  ;  Wright  v.  Maiden  R.  Co.,  4  Allen,  283  ; 
Holly  V.  Boston  Gas  Co.,  8  Gray,  123  ;  Callahan  v.  Bean,  9  Allen, 
401  ;  Pittsburgh  R.  Co.  v.  Vining,  27  Ind.  513  ;  Lafayette  R.  Co,  v. 
Huffman,  28  Ind.  287.  The  doctrine  would,  .so  far  as  it  may  be  sound, 
be  equally  applicable  of  course  to  the  case  of  any  helpless  or  imbecile 
person. 


350  LAW   OF  TORTS.  [Part  III. 

tribntory  negligence  of  a  person  in  charge  of  the  plaintiff, 
a  child  too  young  to  take  care  of  himself,  injure  the  plain- 
tiff.    They  are  deemed  not  liable  for  the  misfortune.^ 

This  doctrine,  however,  is  not  accepted  by  all  the 
American  courts,  and  has  often  been  met  with  the  same 
answer  that  has  been  given  to  the  doctrine  of  imputing  to 
passengers  the  negligence  of  their  carriers.  The  negli- 
gence of  a  parent  or  custodian  of  a  child,  it  is  well  said, 
cannot  properly  be  imputed  to  the  child  ;  and,  supposing 
the  child  incapable  of  negligence,  the  conclusion  is  reached 
that  he  can  recover  for  injuries  sustained  by  the  negli- 
gence of  another,  though  the  negligence  of  the  child's 
parent  or  guardian  contributed  to  the  misfortune.^ 

It  is  clear  that  if  the  child  himself  be  guilty  of  contribu- 
tory negligence  (supposing  him  capable  of  negligence), 
apart  from  the  negligence  of  his  parent  or  guardian,  there 
can  be  no  recovery  ;  and  whether  the  child  be  capable  of 
personal  negligence  is  a  question  of  fact,  depending  upon 
his  age  and  ability  to  take  proper  care  of  himself.^  It  has 
sometimes  been  said  that  the  same  discretion  is  necessary 
in  a  child  that  is  required  of  an  adult.*  This,  however, 
could  only  be  true,  it  should  seem,  in  those  cases  in  which 
the  child  is  sufficiently  mature  to  be  able  to  take  good  care 
of  himself.  In  other  cases,  the  better  rule  is  that,  so  far 
as  the  question  of  the  child's  negligence  is  concerned,  it 
is  only  necessary  that  he  should  exercise  such  care  as 
he  reasonably  can,  or  as  children  of  the  same  capacity 
generally  exercise.^ 

1  Wright  t'.  Maiden  Ry.  Co.,  4  Allen,  283. 

2  Bellefontaine  R.  Co.  v.  Snyder,  18  Ohio  St.  399  ;  North  Penn.  R. 
Co.  V.  Mahoney,  57  Penn.  St.  187  ;  Louisville  Canal  Co.  v.  Murphy,  9 
Bush,  522  (Ky.). 

8  Lynch  v.  Nurdin,  1  Q.  B.  29  ;  Lynch  v.  Smith,  104  Mass.  52  ; 
Evansich  v.  G.  Ey.  Co.,  57  Texas,  126. 

♦  Burke  v.  Broadway  R.  Co.,  49  Barb.  529. 
5  Lynch  v.  Smith,  supra. 


Chap.  XVII.  §  12.]  NEGLIGENCE.  351 

In  the  case  of  a  child  too  young  to  take  care  of  him- 
self, it  is  clear  that,  if  the  negligence  of  the  parent  or 
person  in  charge  is  the  sole  proximate  cause  of  the  mis- 
fortune, the  defendant  cannot  be  liable.  For  example  : 
The  defendant,  a  railway  company,  is  negligent  in 
moving  a  train  along  one  of  its  tracks.  The  plaintiff's 
grandmother,  who  has  bought  of  the  defendant  a  ticket 
of  passage  for  herself  and  the  plaintiff,  a  child,  negli- 
gently attempts  to  cross  the  track  in  charge  of  the  child, 
and  the  child  is  injured  by  train.  The  defendant  is 
deemed  not  liable ;  the  defendant  having  the  right  to 
expect  that  the  lady  would  take  due  care  of  herself  and 
of  the  plaintiff.^ 

It  is  equally  clear  that  if  the  fault  of  the  person  in 
charge  of  the  child  was  not  a  proximate  cause  of  the  mis- 
fortune, the  defendant,  being  negligent,  will  be  liable. '-^ 
The  parent  or  other  person  in  charge  could  recover  for 
an  injury  done  to  himself  by  the  defendant's  negligence  ; 
and  a  fortiori  should  a  young  child,  incapable  of  negli- 
gence, be  entitled  to  recover  in  such  a  case.  And  the 
same  would  be  true  of  negligence  on  the  part  of  the  child 
(supposing  him  capable  of  negligence)  when  such  fault 
did  not  contribute  as  a  proximate  cause  to  the  injury. 
For  example  :  The  defendant,  a  hackman,  carelessly  runs 
over  a  child  five  years  of  age,  in  a  city,  while  the  child  is 
crossing  a  street  alone,  on  his  way  home  from  school. 
The  child  is  not  guilty  of  any  negligence  further  than  may 

1  "Waite  V.  Northeastern  Ry.  Co.,  El.  B.  &  E.  719,  approved  in  the 
Bernina,  supra,  by  Lord  Esher,  12  P.  Div.  at  pp.  71-75.  See  13  App. 
Cas.  10,  16,  19.  This  assumes  that  the  defendant's  negligence  was  not 
also  a  proximate  cause  of  the  injury,  as  it  might  be,  as  where  the  per- 
son in  charge  of  the  child,  and  the  defendant,  were  driving  negligently 
and  came  into  collision.  But  there  is  ground  for  doubt  still  in  regard 
to  Waite' s  Case. 

a  Ihl  V.  Forty-second  St.  R.  Co.,  47  N.  Y.  317,  323. 


352  LAW  OF  TORTS.  [Pakt  III. 

be  implied  from  his  going  alone  ;  in  regard  to  this  the 
child's  parent  may  be  negligent.  The  defendant  is  liable  ; 
the  negligence  of  the  child,  if  there  was  any  in  his  going 
alone,  and  of  the  parent,  if  found  to  exist,  not  contribut- 
ing in  the  stricter  sense  to  the  misfortune,  since  it  is  not 
the  natural  and  usual  effect  of  a  child's  crossing  the  street 
that  he  should  be  run  over.^ 

Indeed,  it  is  not  clear  that  the  rule  should  not  be  that 
a  child  of  tender  years,  that  is  to  say,  incapable  of  negli- 
gence, should  be  able  to  maintain  an  action  for  the  injury 
he  has  sustained  in  cases  of  this  kind,  though  the  person 
in  charge  was  guilty  of  contributory  negligence.  It 
might  be  considered  enough  that  the  defendant's  act  or 
omission  was  (though  not  the  sole)  a  proximate  cause  of 
the  damage.  And  the  principle  of  the  recent  decisions 
above  referred  to  in  regard  to  passenger  and  carrier 
appears  to  sustain  the  view  that  if  the  negligence  of  each 
of  the  persons  concerned  is,  as  it  might  well  be,  a  proxi- 
mate cause  of  the  injury  to  the  plaintiff,  both  of  them  are 
liable. 

If  the  parent  sue  for  himself,  upon  the  relation  of  mas- 
ter and  servant,  for  loss  of  service,  the  question  is  some- 
what different.  If  the  child  be  incapable  of  negligence, 
the  question  will  be  whether  the  parent's  negligence  con- 
tributed in  the  stricter  sense  to  the  misfortune ;  but 
if  the  child  were  capable  of  negligence,  and  were  in 
fact  negligent,  it  would  still  be  doubtful  m  principle 
whether  any  negligence  of  his  could  Imr  an  action 
against  another  by  the  parent,  as  a  master,  for  loss  of 
service  caused,  though  in  part  only,  by  the  defendant's 
negligence.^ 

The  result  is,  that  whatever  particular  phase  a  case  may 

J  Lynch  v.  Smith,  104  Mass.  52. 

2  Compare  the  action  for  seduction,  ante,  pp.  164  et  seq.  See  also 
Glassey  v.  Hestonville  Ry.  Co.,  57  Penn.  St.  172. 


Chap.  XVII.  §  12.]  NEGLIGENCE.  853 

present,  be  it  contributory  negligence  or  an  intervening 
agency,  the  question  upon  which  the  defendant's  liability 
turns  must  be  whether  his  conduct  was  the  (or  was  a) 
proximate  cause  of  the  damage,  or  only  a  condition 
thereto. 


P3 


INDEX. 


INDEX. 


[The  italic  lines  indicate  the  titles  to  seciiDiis  ] 


A. 

ABRIDGMENTS, 

when  infringement  of  copyright,  239. 

ABUSE   OF  PROCESS, 
effect  of,  72,  73. 

ACCIDENT, 

as  an  excuse  of  a  battery,  127. 

{See  Negligence.) 
ACQUITTAL, 

in  suits  for  malicious  prosecution,  57-59. 

ADMINISTRATORS   AND   EXECUTORS, 

liability  for  negligence,  309. 

AGENTS, 

misrepresentation  of  authority,  36. 

liability  to  principals  for  negligence,  305-307. 

AMBIGUITY, 

distinguished  from  vagueness,  28. 

ANIMALS, 

property  in,  196. 

injuring,  196,  201,  202. 

Notice  of  Prnpensihj  to  do  Damage,  272-275. 

•wild  animals.  273. 

domestic  animals,  273. 

negligence  of  owner,  273,  274. 

injury  from  irritating  animal,  274. 

injured  party  having  notice,  274. 

Escape  of  Animals,  275,  276. 

duty  to  provide  fences,  275. 


358  INDEX. 

ARBITRATORS, 

not  liable  for  negligence,  314,  315. 

ARRESTS. 

(See  False  Imprisonment.) 

ASSAULT   AND   BATTERY, 

Assault,  121-124. 

what  constitutes,  121,  122. 

intention,  122. 

distance  of  parties  from  each  other,  123. 

damage,  124. 

Battery,  124-129. 

what  constitutes,  124,  125. 

contact,  125. 

intention,  126,  127. 

negligence,  127. 

accident,  127. 

acts  done  in  sport,  128. 

hostile  acts,  128. 

taking  property,  128,  129. 

Son  Assault  Demesne,  129-132. 

what  amounts  to,  129,  130. 

acts  of  parents  and  schoolmasters,  129. 

self-defence,  130. 

protection  of  property,  130. 

amount  of  force  which  may  be  used,  131. 

wrongful  entry  upon  another's  land,  131. 

defence  of  family,  132. 

defence  of  master,  132. 

defence  of  servant,  132. 

quelling  a  riot,  132, 

Violence  to  Another^s  Servants,  132-136. 

double  right  of  action,  132,  133. 

servant's  right,  133. 

master's  right,  133. 

parent's  right,  133. 

breaches  of  contract,  134,  135. 

death  of  servant  or  wrong-doer,  136. 

ASSIGNEES, 

liability  for  negligence,  309. 


INDEX.  359 


ATTORNEY, 

liability  of,  for  false  imprisonment,  151-154. 
for  negligence,  299-301. 

B. 
BAILOR   AND   BAILEE, 

duties  of  bailee,  291-298. 

(See  Negligence.) 
BATTERY. 

(See  Assault  and  Battery.) 
BLASTING, 

damage  from,  282. 

BUSINESS   SIGNS, 
fraud  as  to,  52,  53. 

c. 

CARRIER, 

general  duties  of  common  carrier,  291. 

identification  of  passenger  with,  347-349. 
CERTAINTY, 

required  in  representations,  22-28. 
CHILDREN, 

negligence  of,  349,  350. 
CLERK   OF   COURT, 

improper  writ  issued  by,  147,  148. 
CLOSE, 

meaning  of,  178. 

COMMON   CARRIER, 

general  duties  of,  291. 

CONCEALMENT. 

(See  Deceit.) 

CONFIDENTIAL   RELATIONS, 

dealings  between  parties  to,  44. 
in  actions  for  defamation,  112,  113. 
CONSPIRACY, 

distinguished  from  malicious  prosecution,  75. 

Malice,  77-79. 

what  amounts  to  conspiracy,  77,  78. 


360  INDEX 

CONSPIRACY,  —  continued. 

participation  in,  78. 

overt  acts,  78. 

no  benefit  derived,  78. 

intention  to  make  profit,  78. 

silent  observation  of,  78. 

employing  others,  79. 

Damage,  79. 
CONSTRUCTIVE   NOTICE, 

by  failing  to  inquire,  331,  332. 

CONTRACT, 

malicious  interference  with,  80-83. 
Distinction  between  Contract  and  Property,  83. 
torts  growing  out  of  breaches  of,  134,  135,  344,  345. 
(See  Deceit.) 

CONTRIBUTORY  NEGLIGENCE, 

what  constitutes,  332-342. 

{See  Negligence.) 
CONVERSION, 

trover,  detinue,  and  replevin  explained,  203,  204. 

Possession,  204-208. 

right  of  possession,  205. 

special  property,  205. 

jus  tertii,  206. 

finding,  206,  207. 

possession  of  servant,  208. 

What  constitutes  Conversion,  208-222. 

sale  without  authority,  209. 

knowledge  of  title,  208.  209. 

liability  of  purchaser,  211. 

effect  of  fraud  in  sale,  211 

sale  with  right  of  repurchase,  211,  212. 

conditional  sale,  212. 

sale  of  pledge,  212. 

sale  of  qualifip'l  intprest,  213. 

sale  of  part,  214,  215. 

perriiittinsr  another  to  sell  one's  goods,  215. 

appropriating  article  to  use  not  intended,  216. 

injury  of  chattel.  216.  217. 

mete  assertion  of  dominion,  217. 


INDEX.  361 

CONVERSION,  —  continued. 
intention  to  convert,  218. 
demand  and  refusal,  220. 
refusal  only  prima  facie  conversion,  221,  222. 
taking  of  goods  by  purchaser  from  vendor  having  no  right 
to  sell,  221. 

COPYRIGHTS, 

infringements  of,  234-241. 

{See  Patents  and  Copyrights.) 
CORPORATIONS, 

torts  of  directors,  36,  310,  311. 
CRIME, 

imputation  of,  90-92. 
CRIMINAL   CONVERSATION, 

action  for,  175-177. 
CRITICISM, 

not  defamation,  116. 
CUSTOMERS, 

injuries  to,  by  condition  of  premises,  322-327. 


D. 

DAMAGE, 

in  deceit,  47. 

in  malicious  prosecution,  71,  72. 

in  conspiracy,  79. 

in  malicious  interference  with  contracts,  82,  83. 

in  slander,  86-90. 

in  assault  and  battery,  124,  133. 

in  false  imprisonment,  137. 

in  enticement  and  seduction,  163,  165,  171,  176. 

in  trespass,  191. 

in  convei-sion,  216,  217. 

in  infringements  of  patents  and  copyrights,  223,  234,  235. 

in  violation  of  rights  of  support,  242. 

in  violation  of  water  rights,  253. 

in  nuisance,  259. 

in  escape  of  animals,  275,  276. 

in  escape  of  dangerous  elements  or  substances,  277. 

in  negligence,  286. 


362  INDEX. 

DANGEROUS  THINGS,   ESCAPE  OF, 

protection  against,  277-282. 

DECEIT, 

elements  of  action  for,  17. 

The  Representation,  18-33. 

meaning  of  '  representation,'  18. 

how  representation  differs  from  warranty,  18,  19. 

warranty  treated  as  representation,  20. 

representation  requires  an  act,  20. 

silence,  20,  22. 

concealment,  21. 

representation  .should  be  certain,  22,  23. 

language  not  necessary,  23. 

difference  between  vagueness  and  ambiguity,  24. 

terms  of  art,  24,  25. 

language  having  different  meanings  in  different  places,  25. 

statements  of  opinion,  25-28. 

statements  of  value,  26-28. 

statements  of  cost,  26,  27. 

statements  of  income,  27. 

statements  concerning  a  man's  pecuniary  condition,  27,  28. 

representation  should  relate  to  present  or  past  facts,  28. 

implied  representations,  28-30. 

prediction,  29. 

representations  of  law,  30,  31. 

materiality,  31. 

falsity,  32,  33. 

literal  sense  of  words,  33. 

Defendants  Knowledge  of  Falsity,  33-37. 

honest  statement  of  fact  generally  not  actionable,  33. 

exception  as  to  matters  within  the  party's  peculiar  means 

of  knowledge,  35. 
representations  by  agents  concerning  their  authority,  36. 
representations  by  directors  of  corporations,  36. 
Ignorance  of  the  Plaintiff",  37-45. 
knowledge  of  facts  by  plaintiff  fatal  to  action,  37. 
belief  in  defendant's  statements,  37. 
making  investigation,  38. 
when  plaintiff  bound  to  know  the  facts,  38. 
means  of  knowledge  at  hand,  39. 


INDEX.  363 

DECEIT,  —  continued. 

necessity  of  reading  contract,  41. 

plaintiff  prevented  from  investigation,  42,  43. 

sales  at  risk  of  purchaser,  44. 

parties  not  on  equal  footing,  44. 

Intention  that  Representation  should  he  acted  on,  45-47. 

explanation  of  this  expression,  45. 

reasonable  inference  of  such  intention,  46. 

intent  to  injure,  47. 

Acting  on  Representation,  47-49. 

damage,  47. 

preventing  one  from  attaching  property,  48. 

when  plaintiff  entitled  to  act  on  representation,  48. 

Slander  of  Title,  49-53. 

elements  of  action  for,  50. 

Trade-marks,  51,  52. 

elements  of  action  for,  52. 

DEFAMATION. 

(See  Slander  and  Libel.) 

DEMAND   AND   REFUSAL, 

when  necessary  to  constitute  conversion,  220-222. 

DESIGNS, 

infringements  of  patents  for,  229,  230. 

DETENTION, 

of  prisoner  by  officer,  142,  143. 

DIGESTS, 

when  infringements  of  copyright,  240. 

DIRECTORS   OF   CORPORATION, 

misrepresentations  by,  36. 

liability  of,  for  negligence,  310,  311. 

DISEASE, 

imputation  of  having  disgraceful,  92,  93. 

DISMISSAL   OF   SUIT, 

in  actions  for  malicious  prosecution,  57-61. 

DRUNKENNESS, 

imputation  of,  against  a  woman,  91,  note. 

DURESS,  effect  of,  73. 


364  INDEX. 

E. 

EFFIGY. 

defamation  by,  99. 
ENTICEMENT   AND  SEDUCTION, 

elements  of  action,  163. 

Parent  and  Child,  164-170. 

ground  of  parent's  rights  of  action,  164. 

animus  revertendi,  164. 

child  of  age,  165,  166. 

fraud  on  parent,  165. 

acts  of  service,  165. 

majority  of  daughter,  166. 

pregnancy  and  disease,  166. 

>A'illingness  of  daughter,  167. 

mother's  right  of  action,  168. 

seduction  of  daughter  away  from  home,  1G9. 

action  by  daughter,  169. 

consent  or  misconduct  of  parent,  169,  170. 

Guardian  and  Ward,  170,  171. 

suit  by  guardian,  170. 

Husband  and  Wife,  171-177. 

gist  of  action  by  husband  or  wife,  171,  172. 

liability  of  parent  for  enticing   daughter  from   husband, 

172,  173. 
harboring  wife,  173,  174. 
seduction  after  wife's  separation,  175,  176. 
infidelity  of  husband,  176. 
consent  or  misconduct  of  husband,  176. 
condonation,  177. 

ENTRY, 

rights  of,  180,  192-197. 
forcible,  194,  note. 

ESCAPE   OF   ANIMALS. 

{See  Animat.s  ) 

ESCAPE    OF    DANGEPvOUS    ELEMENTS    OR    SUB- 
STANCES, 
Nature  of  Protection  required,  277-282. 
reservoirs,  278. 


INDEX.  365 

ESCAPE   OF   DANGEROUS   ELEMENTS, —con^mued. 
effect  of  gravitation,  279. 
extraordinary  efforts,  279. 
vis  major  and  act  of  God,  279,  280 
legislative  authority,  280,  281. 
fall  of  snow  or  ice,  281,  282. 
damage  from  blasting,  282. 
explosion  of  boiler,  282. 

EXECUTORS  AND   ADMINISTRATORS, 

liability  for  negligence,  309. 

EXPLOSION, 

damage  from,  282. 

F. 

FALSE  IMPRISONMENT, 

Nature  of  Restraint,  137-140. 

submission  to  restraint,  138. 

partial  restraint,  139. 

Arrest  ivith  Warrant,  140-156. 

oflScer's  justification,  140. 

arrest  of  wrong  person,  140. 

misleading  officer,  141. 

description  in  writ  of  person  intended,  141. 

misnomer,  141. 

acts  in  excess  of  authority,  142. 

oppressive  conduct,  142. 

detention  after  writ  has  expired,  142. 

detention  on  other  writs,  143. 

retaking  escaped  prisoner,  144,  145. 

in  civil  cases,  144. 

in  criminal  cases,  144,  145. 

invalidity  of  writ,  and  effect  on  officer,  145. 

writ  void  or  not,  when,  145,  146. 

officer's  liability  restated,  146. 

liability  of  clerk,  147,  148. 

liability  of  judge,  149-151. 

summary,  151. 

liability  of  plaintiff  and  his  attorney,  151-154. 


366  INDEX. 

FALSE   IMPRISONMENT,  —  continued. 

distinction  between  civil  and  criminal  cases,  154,  155. 

setting  aside  the  writ,  155,  156. 

malicious  prosecution,  156, 

Arrests  without  War7-ant,  156-162. 

when  proper,  157. 

arrest  on  the  spot,  157. 

on  suspicion  of  felony  by  officer,  157,  158. 

reasonable  cause,  158. 

misdemeanor,  160. 

arrest  after  termination  of  breach  of  peace,  160. 

right  of  private  citizen  to  arrest,  161. 
FELLOW-SERVANTS, 

injury  by  negligence  of,  330. 

who  are,  331. 

FINDING, 

gives  right  of  possession  against  wrong-doer,  206,  207. 

FORCIBLE   ENTRY, 

by  licensee,  194:,  note. 
FOX'S   ACT, 

practice  under,  85,  note. 

FRAUD, 

how  proved,  37. 

makes  sale  voidable,  211. 

{See  Deceit.) 

FRUIT, 

falling  upon  another's  land,  196. 

G. 

GRATUITY, 

interfering  with  enjoyment  of,  12,  83.   ; 

GUARDIAN   AND  WARD, 

seduction  of  ward,  170,  171. 

H. 

HARBORING, 

of  servant,  163. 
of  wife,  173-175. 


INDEX  367 

HIGHWAYS, 

obstructing,  269,  270. 

HOUSES, 

fall  of,  243-250. 

HUSBAND   AND  WIFE, 

defamation  of  either,  87,  note, 
harboring  wife,  173,  174. 
seduction  or  enticement  of  wife,  171-177. 
infidelity  of  husband,  176. 
condonation  of  offence,  177. 

I. 

IDENTIFICATION, 

of  passenger  with  carrier,  347-349. 

IMPRISONMENT. 

{See  False  Imprisonment.) 

IMPUTABILITY, 

of  negligence  of  parent  or  guardian  to  child,  349,  350. 

INFAMOUS  PUNISHMENTS, 

what  are,  90,  note. 

INNKEEPERS, 

general  duties  of,  290,  291. 

INTENT, 

in  deceit,  45-47. 

in  assault  and  battery,  122,  126,  127. 

in  conversion  of  goods,  218. 

INTERPRETATION  OF  LANGUAGE, 

in  deceit,  24,  25. 

in  cases  of  slander,  85-87. 

J. 

JEOPARDY, 

in  suits  for  malicious  prosecution,  58-61. 
JUDGE, 

liability  of,  for  false  imprisonment,  149-151. 
not  liable  for  negligence,  314,  315. 


368  INDEX. 


K. 

KNOWLEDGE  OF  FALSITY, 

in  suits  for  deceit,  34. 

L. 

LANDLORD   AND   TENANT, 

landlord's  right  of  action  for  injury  to  reversion,  184. 

LANGUAGE, 

interpretation  of,  24,  25,  85-87. 

LATERAL   SUPPORT. 

(See  Supports.) 

LAWYERS, 

advice  of,  in  arrests,  66-69. 

liability  for  false  imprisonment,  151-154. 

for  negligence,  299-301. 

LECTURES, 

unauthorized  publication  of,  235,  note. 

LEGAL   ADVICE, 

acting  on,  in  making  arrest,  66-68. 

LIBEL. 

(See  Slander  and  Libel.) 
LICENSE, 

nature  of,  192,  193. 
revocation  of,  193. 

duty  to  licensee  in  regard  to  condition  of  premises,  316-322, 
(See  Trespass.) 

LITERARY   CRITICISM, 
when  libellous,  116. 

M. 

MACHINES, 

infringement  of  patents  of,  226-229. 
MAINTENANCE, 

actions  for,  74. 


INDEX.  369 

MALICE, 

in  what  it  consists,  5,  70,  71,  note,  80. 
(See  Conspiracy  ;  Malicious  Prosecution  ;  Slander  and 

Libel.) 

MALICIOUS  APPEALS, 

statute  of,  60,  note. 

MALICIOUS  INTERFERENCE   WITH  CONTRACT, 

Malice,  80-82. 
Damage,  82,  83. 

MALICIOUS   PROSECUTION, 

elements  of  the  action,  54. 

criminal  and  civil  prosecutions,  55. 

Termination  of  the  Prosecution,  55-61. 

acquittal  of  party  prosecuted,  57. 

civil  suit  terminated,  how,  57. 

dismissal  of  action,  57,  58. 

discontinuance,  58. 

criminal  suit  terminated,  how,  58. 

dismissal  by  prosecuting  officer,  58. 

return  of  '  not  found,'  59. 

prosecution  before  magistrate,  59. 

dismissal  of,  59. 

jeopardy  of  prisoner,  60. 

Statute  of  INIalicious  Appeals,  60,  note. 

summary,  60. 

Want  of  Probable  Cause,  61-69. 

meaning  of  term,  61.  ^ 

slight  circumstances  of  suspicion,  61,  62. 

how  probable  cause  to  be  determined,  62. 

judgment  of  conviction,  63. 

belief  in  guilt  of  accused,  63. 

discharge  by  magistrate,  64,  65. 

abandonment  of  prosecution,  66. 

advice  of  lawyer,  66-69. 

evidence  of  malice  not  proof  of  want  of  probable  cause,  69. 

a  question  of  law,  69. 

Malice,  09,  70. 

evidence  of,  necessary,  69,  70. 

Damage,  71,  72. 

24 


370  INDEX. 

MALICIOUS   PROSECUTION,  —  continued, 
when  to  be  proved,  71. 
Analogous  Wrongs,  72-74. 
action  for  slander,  72. 
abuse  of  process,  72,  73. 
duress,  73. 

MANUSCRIPT, 

copyright  in,  235,  note. 

MASTER   AND   SERVANT, 

charges  by  master  affecting  servant's  character,  95,  112. 

defence  of  master,  132. 

defence  of  servant,  132. 

servant's  right  of  action  for  battery,  133. 

master's  right  of  action  for  battery  of  servant,  133. 

death  of  servant,  136. 

servant  has  no  possession,  208. 

servant's  liability  to  master,  307,  308. 

injuries  to  servants  by  condition  of  master's  premises  or 

machinery,  327-331. 
negligence  of  fellow-servant,  330. 

(See  Enticement  and  Seduction.) 

MEANS  OF  KNOWLEDGE, 

in  actions  for  deceit,  38-40. 

MEDICAL  MEN, 

duties  of,  301,  302. 

MENACES, 

actionable  if  followed  by  special  damage,  121,  note. 

MENTAL   DISTRESS, 

as  special  damage,  88. 

MILLS. 

(See  Watercourses.) 

MISDEMEANOR, 

false  charge  of  committing,  91. 
arrests  for,  160. 

MORAL  TURPITUDE, 
offences  involving,  91. 


INDEX.  371 

N. 
NECESSITY, 

entry  from,  197. 

NEGLIGENCE, 

of  owner  of  animals,  273,  274. 

acts  or  omissions  may  constitute,  286. 

standard  of  the  prudent  man,  287,  288. 

province  of  court  and  jury,  288,  289 

Innkeeper  and  Guest,  290,  291 

innkeeper  an  insurer,  290. 

negligence  of  guest,  290. 

Bailor  and  Bailee,  291-298. 

common  carriers,  291. 

degrees  of  negligence,  291,  292. 

the  true  criterion,  293,  294. 

ordinary  care,  294,  295. 

bailment  for  services,  296,  297. 

exercise  of  skill,  297. 

inherent  defect  in  goods  to  be  wrought  upon,  298. 

Professional  Services,  298-302. 

extraordinary  skill  not  required,  299. 

duties  of  attorneys,  299-301. 

duties  of  medical  men,  301,  302. 

gratuitous  services  of,  302. 

Telegraph  Companies,  303,  304. 

care  in  transmitting  messages,  303. 

conditions  limiting  liability,  303,  304, 

liability  to  him  to  whom  the  message  is  sent,  304. 

Liability  of  Agents,  Servants,   Trustees,  and  Officers  to  their 

Superiors,  305-312. 
agent's  liability  to  principal,  305-307. 
extraordinary  emergencies,  306. 
agents  for  insurance,  306. 
servant's  liability  to  master,  307,  308. 
ratification,  308. 
liability  of  trustee,  308,  309. 
executors,  administrators,  and  assignees,  309. 
obtaining  legal  advice,  309,  310. 
directors  of  corporations,  310,  311. 


372  INDEX. 

NEGLIGEI^CE,—  continued. 

public  officers,  312,  313. 

officers  of  government,  313. 

officers  of  the  courts,  313,  314. 

judges  and  arbitrators,  314,  315. 

Use  of  Premises,  315-331. 

duty  of  occupant  to  trespassers,  315,  316. 

to  bare  licensees,  316-319. 

pits  adjoining  highway,  317,  318. 

invited  licensees,  319-322. 

customers,  322-327. 

place  where  injury  happened,  323-325. 

business  of  the  occupant,  326,  327. 

duty  of  master  to  servant,  327-331. 

defective  apparatus,  327. 

personal  negligence  of  master,  329. 
'  negligence  of  fellow-servant,  330. 

who  are  fellow-servants,  331. 
'  Notice,  331,  332. 

failing  to  make  inquiry,  331,  332. 

Contributory  Negligence,  332-342. 
intervening  acts  of  plaintiff,  332. 
meaning  of  contributory  negligence,  332. 
unlawful  acts  not  per  se  contributory,  335,  336 
violations  of  Sunday  law,  335,  336. 
party  paralyzed  by  fear,  337,  338. 
contributory  acts  of  third  persons,  342-344. 
knowledge  and  intention  of  defendant,  343,  344. 
cases  growing  out  of  breach  of  contract,  344,  345. 
identification  of  passenger  with  carrier,  347-349. 
imputability  of  parent's  negligence  to  child,  349,  350. 
negligence  of  child,  350-353. 

NOLLE   PROSEQUI, 

in  suits  for  malicious  prosecution,  59. 

NOTICE, 

by  registration,  40. 

of  vicious  propensity  of  animals,  272-275. 

of  danger,  274. 

constructive,  331,  332. 


INDEX.  373 

NUISANCE, 

overhanging  trees,  196,  note. 
What  constitutes,  260-271 
locality,  259. 

'  convenient '  place,  260,  261. 
slight  detriment  to  property,  261,  262. 
notice  of  nuisance,  262. 
flooding  a  neighbor's  land,  263,  264. 
surface-water,  261. 
water  of  drains  and  ditches,  261. 
pollution  of  streams,  264,  265. 
milling  operations,  265. 
smells  and  gases,  265,  266. 
disturbance  of  peace  of  mind,  267 
public  nuisances,  267-271. 
special  damage,  268,  269. 
removing  obstructions,  269. 
cii'cuitous  routes  made  necessary  by  obstruction,  270,  271. 

o. 

OFFICERS. 

((See  Assault  and  Battery;  Directors  of  CoRPORATiOiS's ; 
False  Imprisonment;  Public  Officers.) 


PARENT   AND   CHILD, 

protection  of  child  from  battery,  133. 

seduction  of  child,  164-170.     {See  Enticement  and  Se- 
duction.) 
injury  of  child  by  parent's  negligence,  349,  350. 

PARTY   WALLS, 

removing  support  of,  248-250. 

PASSENGER, 

identification  of,  with  carrier,  347-349. 

PATENTS   AND   COPYRIGHTS, 

Infringement  of  Patent,  223-233. 
statutory  provisions,  223,  224. 


374  INDEX. 

PATENTS   AND   COPYRIGHTS, —con^mue^f. 
making,  using,  or  vending,  225. 
machines,  226-229. 
mechanical  equivalents,  227-229. 
better  execution,  227,  228. 
difference  in  substance,  228. 
designs,  229,  230. 
mere  making,  230. 
unauthorized  sale,  231. 
product  of  patented  machine,  231,  232. 
Infr'mcjement  of  Copyright,  234-241. 
statutory  provisions,  234,  235. 
what  belongs  to  authors,  235. 
head-notes  of  law  reports,  236. 
animus  furandi,  236,  237. 
quantity  of  matter  taken,  237. 
quotation  for  criticism,  237. 
imitations  of  copyrighted  matter,  238. 
common  sources  of  information,  238. 
abridgments,  239. 
digests,  240. 
translations,  240. 

PERJURY, 

false  charges  of,  86. 

PHYSICIANS   AND  SURGEONS, 

duties  of,  301,  302. 

PLEDGE, 

sale  of,  212. 

POLLUTION   OF   STREAM. 

(See  Watercourses.) 

POSSESSION, 

constructive,  185,  note, 
symbolical,  185,  note. 

(See  Conversion;  Trespass.) 

PREMISES, 

use  and  condition  of,  815-331. 

(See  Negligence.) 


INDEX.  375 


PRINCIPAL  AND  AGENT. 

(See  Agents.) 

PRIVILEGED   COMMUNICATIONS, 

in  slander  and  libel,  99-118. 

(See  Slander  and  Libel.) 

PROBABLE   CAUSE, 

want  of,  61-69,  79. 

PROFESSIONAL   SERVICES, 

duties  by  persons  rendering,  298-302. 
(See  Negligence.) 

PROSECUTION, 

termination  of,  55-61. 

PUBLICATION, 

of  slander  or  libel,  87-90. 

PUBLIC   MEN, 

criticism  of,  116. 

PUBLIC    OFFICERS, 

liability  for  negligence,  312,  313. 

PUBLISHERS  OF  BOOKS  AND  PAPERS, 

liable  for  defamation,  97,  98. 
PUNISHMENT, 

when  infamous,  90,  note. 


R. 

RAILWAY  TIME-TABLES, 

representations  by,  35,  note. 

REASONABLE   CAUSE, 
want  of,  61-69,  79. 

RECAPTION, 

iu  civil  cases,  144. 

in  criminal  cases,  144,  145. 

REGISTRY, 

notice  by,  40. 

REPETITION, 

of  defamation,  115. 


376  INDEX. 

REPORTS, 

of  trials,  when  privileged,  106,  107. 
copyrights  of,  236. 

REPRESENTATION. 

(See  Deceit.) 
RESCISSION   OF   CONTRACTS, 

for  misrepresentation  or  other  wrong,  41,  42. 

RESERVOIRS, 

breaking  of,  278. 

REVERSION, 

injuries  to,  183,  184. 

RIOT, 

acts  done  in  quelling,  132. 

S. 

SALES, 

'  with  all  faults,'  44. 

(See  Conversion;  Deceit.) 

SCIENTER, 

proof  of  in  deceit,  34. 

SEDUCTION. 

(See  Enticement  and  Seduction.) 

SELF-DEFENCE, 

in  protection  of  person,  130. 
protection  of  property,  130. 
protection  of  family,  132. 

SERVANT, 

(See  Master  and  Servant;  Negligence.) 

SIMPLEX  COMMENDATIO, 

meaning  of,  26. 

SLANDER   AND  LIBEL, 

kinds  of  actionable  defamation,  84. 
Interpretation  of  Language,  85-87. 
Fox's  act,  85,  note, 
doctrine  of  mitiori  sejjsu,  81}. 
perjury,  86. 


INDEX.  377 

SLANDER   AND   LmEL,  —  continued. 

natural  nieauing,  86. 

Publication  and  Special  Damage,  87-90. 

what  constitutes  publication,  87. 

sickness  and  distress  of  mind,  87. 

loss  of  marriage,  89. 

loss  of  consortium,  89. 

Indictable  Offence  charged^  90-92. 

infamy  of,  90. 

misdemeanor,  91. 

degradation,  the  criterion,  91. 

Contagious  and  disgraceful  Disease  charged,  92. 

charge  of  having  had  same,  92. 

Charge  affecting  Plaintiff  in  his  Occupation,  93-95. 

natural  tendency  of  charge,  93. 

charge.s  affecting  servants,  95. 

positions  of  mere  honor,  9.'5. 

party  not  in  exercise  of  his  occupation,  95. 

Charge  tending  to  Disherison,  96. 

bastardy,  96. 

Libel,  96-98. 

of  wider  extent  than  slander,  96,  97. 

publishers,  editors,  and  booksellers,  97,  98. 

Truth  of  Charge,  98,  99. 

a  good  defence,  98. 

belief  in  truth,  99. 

effigy,  picture,  or  sign,  99. 

Malice  and  Privileged  Communications,  99-118. 

malice  in  law,  99. 

malice  in  fact,  99. 

occasion  of  publication,  100,  101. 

absolute  privilege,  101. 

arguments  of  counsel,  101,  102. 

allegations  in  pleadings,  102. 

affidavits,  103. 

statements  of  witnesses,  jurors,  and  judges,  103,  104. 

proceedings  in  Legislature,  101. 

prima  facie  privilege,  105. 

proceedings  before  church  organizations,  105,  106. 

reports  of  trials,  106,  107. 


378  INDEX. 

SLANDER   AND    LIBEL,  —  continued. 
headings  to,  107. 
ex  parte  proceedings,  108. 
matters  of  public  interest,  108,  109. 
publication  of  legislative  proceedings,  109. 
communications  to  public  authorities,  109,  110. 
conduct  of  public  officers,  116. 
use  of  public  prints,  111. 
vindicating  character.  111. 
voluntary  communications,  112,  113. 
statements  on  inquiry,  113,  114. 

communications  by  master  concerning  his  servant,  112. 
near  relationship,  114. 
confidential  relations,  113. 

summary  of  doctrine  of  privileged  communications,  115. 
repeating  defamation,  115. 
criticism,  116. 
defamatory  accusation  prosecuted,  118. 

SLANDER  OF   TITLE, 
nature  of  wrong,  49-53. 
form  of  declaration,  50,  note. 

SMELLS,  DISAGREEABLE, 
when  nuisance,  265,  266. 

SNOW  AND  ICE, 

land  covered  with  snow,  40,  note, 
injury  by  fall  of  from  building,  281,  282. 

SON   ASSAULT   DEMESNE, 
what  amounts  to,  129,  130. 

SPECIAL  DAMAGE. 

(See  Damage.) 

SPECIAL  PROPERTY, 

meaning  of,  203. 

(See  Conversion  ;  Trespass.) 
SPORT, 

acts  done  in,  128. 

STOCKS, 

punishment  by,  90,  note. 


INDEX.  379 

SUCCOR  OF  BEAST, 

entry  for  purpose  of,  196. 

SUNDAY   LAW, 

injury  while  in  violation  of,  335,  336. 

SUPPORTS, 

Lateral  Support,  242-250. 

natural  condition  of  soil,  242. 

superincumbent  weight,  243,  244. 

lateral  support  of  buildings,  244. 

depends  on  grant  or  prescription,  244. 

subsidence  not  caused  by  weight  of  buildings,  244,  245. 

lateral  support  of  contiguous  buildings,  246,  247. 

depends  on  grant,  reservation,  or  prescription,  247. 

keeping  house  in  repair,  247,  248. 

party-walls,  248-250. 

Subjacent  Support,  250-252. 

freehold  beneath  surface,  250. 

nature  of  right  of  support,  250,  251. 

buildings,  251. 

support  of  upper  tenements,  252. 

SURFACE  WATER. 

{See  Watercourses.) 

SURGEONS, 

duties  of,  301,  302. 


T. 


TELEGRAPH  COMPANIES, 

care  in  transmitting  messages,  303. 

conditions  limiting  liability,  303,  304. 

liability  to  him  to  whom  the  message  is  sent,  304. 

TENANTS, 

in  common,  186. 

{See  Landlord  and  Tenant.) 

TERMINATION   OF   PROSECUTION. 

CSee  Malicious  Prosecution.) 


380  INDEX. 

THIEF, 

possession  by,  182,  note. 

TRADE  MARKS, 

infringements  of,  51-53,  233,  234. 
injunction,  52,  note. 

TRANSLATIOX, 

infringement  of  copyright  by,  240. 

TREES, 

fruit  of,  falling  upon  another's  land,  196. 

TRESPASS, 

general  meaning  of,  178. 

Possession,  178-191. 

necessity  of,  178,  179. 

without  title,  186 

several  in  possession  adversely  to  each  other,  180. 

possession  of  personalty,  182. 

possession  of  thief,  182,  note. 

injury  to  reversion,  183,  184. 

waste,  184. 

personalty  in  hands  of  a  bailee  or  lessee,  184,  185. 

constructive  possession,  185,  186. 

possession  of  cotenants,  186. 

ouster,  187. 

withholding  possession  from  cotenant,  187. 

mesne  profits,  189. 

recovery  of  possession,  188,  189. 

successor  by  descent  or  purchase  to  disseisor,  189. 

What  constitutes  Trespass,  191-202. 

trespass  to  land,  191. 

entry  justifiable  when,  192,  193. 

trespass  ab  initio,  198. 

property  in  animals,  196. 

right  to  kill  another's  animals,  201. 

duty  towards,  202. 

TRESPASS   AB   INITIO, 

meaning  of,  198. 

TRESPASSERS, 

duties  of  occupants  of  premises  towards,  315,  316. 


INDEX.  381 

TRUSTEES, 

liability  of,  for  negligence,  308,  309. 

TRUTH, 

as  a  defence  in  suits  for  defamation,  98,  99. 

u. 

USUFRUCT. 

{See  Watercourses.) 

V. 

VALUE, 

misrepresentations  of,  26-28. 

VIS  MAJOR, 

breaking  of  reservoirs  by,  279,  280. 

W. 

WANT  OF  PROBABLE   CAUSE. 

(^'ee  Malicious  Prosecution.) 

WARRANT. 

(See  False  Imprisonment.) 

WARRANTY, 

distinguished  from  representation,  18,  19. 
implied,  35,  36. 

WASTE, 

duty  to  refrain  from,  184. 

WATERCOURSES, 

Usufruct  and  Reasonable  Use,  253-257. 

water  in  defined  channels,  253,  254. 

what  amounts  to  unreasonable  use,  254. 

water  taken  for  mills,  256. 

diverting  stream  within  one's  land,  256. 

riparian  rights  in  the  Pacific  States,  257. 

grant  or  prescription,  257. 

surface  water  running  in  no  defined  channel,  2;j7. 

Sub-surface  Water,  258. 


382  '  INDEX. 

WATERCOURSES,  —  continued. 
percolating  water,  258. 
uudergrouiid  stream.  258. 
flooding  lands,  263. 
water  in  drains  and  ditches,  264. 
pollution  of  stream,  261,  265. 
legislative  authority,  261. 
milling  operations,  265. 

WRIT. 

{See  False  Imprisonment.) 


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BIGELOW   ON   TORTS. 
BIGELOW   ON   EQUITY. 
HEARD   ON   CRIMINAL    PLEADING. 
HEARD   ON   CIVIL  PLEADING. 
COOLEY   ON   CONSTITUTIONAL   LAW. 
LANGDELL'S   SUMMARY   OF   CONTRACTS. 
CURTIS   ON   UNITED    STATES   COURTS. 
MAY   ON   CRIMINAL    LAW. 
STIMSON'S   LAW   GLOSSARY. 
ROBINSON'S   ELEMENTARY   LAW. 
EWELL'S   MEDICAL   JURISPRUDENCE. 
STEPHEN'S   DIGEST   OF   EVIDENCE. 
ROBINSON   ON   FORENSIC   ELOQUENCE. 
BIGELOW   ON    BILLS.  NOTES,  AND   CHECKS. 

IN    ACTIVE    PREPARATION. 

BRYANT   ON   CODE   PLEADING. 
ABBOTT   ON   WILLS. 
PRICE    OF    EACH    VOLUME.  —  Cloth,   $2.50  net;    L.\w  Sheep,   .fS.OO  net. 
Postage  lU  cents  per  volume  additional 

1 


I.     BIGELOW    ON    TORTS. 

The  style  is  attractive,  the  definitions  concise  and  accurate,  and  the 
size  of  tlie  volume  so  moderate  as  to  be  equally  attractive  both  to  the 
practitioner  and  the  student.  -  From  Hon.  John  Crowell,  President  of  Ohio 
State  and  Union  Law  College,  Cleveland. 

AN  ELEMENTARY  TREATISE  ON  THE  LAW  OF  TORTS.  -  By  Mel- 
ville M.  BiGELuw,  Ph.D.,  author  of  "  A  Treatise  on  the  Law  of  Estoppel/' 
"A  Treatise  on  the  Law  of  Fraud,"  and  Editor  of  "Leading  Cases  in  the 
Law  of  Torts,"  etc.  Fourth  edition,  revised  and  enlarged.  Cloth,  $2.50 
net;  law  sheep,  $3  00  net. 

Among  the  best  books  for  the  use  of  students,  this  popular  manual  de- 
servedl}'  takes  a  high  rank.  It  is  in  use  in  law  schools  all  over  the  countr}-: 
for  example,  in  Boston  University  ;  University  of  Michigan ;  Northwestern 
University,  Chicago;  University  of  Texas;  Washington  and  Lee  University; 
also  in  Canada  at  the  Osgoode  Hall  Law  School,  Toronto;  and  a  few  years 
since  was  adopted  as  a  text-book  in  the  famous  university  of  Cambridge, 
England.  Probably  no  other  students'  book  is  so  widely  used.  The  new  fourth 
edition  embraces  many  late  cases,  and  a  new  chapter  on  Malicious  Literference 
with  Contracts.  The  whole  book  has  been  carefully  revised,  and  many 
passages  rewritten. 

It  seems  to  me  admirably  adapted  to  the  purpose  for  which  it  is  written.  Mr.  Bigelow 
is  very  happy  in  his  statement  of  legal  principles,  and  nowhere  so  much  so,  I  think,  as 
in  this  book.  —  i/ore.  Thomas  M.  Cooley. 

I  have  looked  through  this  volume  with  particular  interest,  from  my  own  expe- 
rience in  teaching  the  same  topic  ;  and  I  have  no  hesitation  in  saying  that  it  is  much 
better  fitted  for  the  student  than  any  work  on  Torts  we  have  had  before.  —  Prof.  William 
G.  Hammond. 

Mr.  Bigelow,  in  his  clear  and  succinct  statement  of  the  duties  of  individuals  towar(| 
each  other  as  members  of  society,  has  made  a  valuable  contribution  to  your  Law  Stu, 
dents'  Series.  —  Hon.  Morrison  R.  Waite,  Chief  Justice  of  the  United  States. 

Its  methodical  arrangement  of  the  classes  of  Torts,  its  clear  style,  and  its  simple  man- 
ner of  treatment,  render  it  specially  useful  to  beginners  in  the  study  of  law.  —  James  B. 
Black,  Central  Law  School  of  Indiana. 

It  is  the  product  of  real  thought  and  diligent  labor  ;  and  the  thought  and  labor  have 
been  too  skilfully  applied  not  to  result  in  a  substantial  addition  to  legal  literature.  — 
Boston  Daily  Advertiser. 

II,     BIGELOW   ON   EQUITY. 

The   arrangement   and   treatment  of   the    subject  are   admirable.— 

From.  Samuel  D.  Paris,  Professor  of  Law,  Richmond  College,  Virginia. 

ELEMENTS  OF  EQUITY  FOR  THE  USE  OF  STUDENTS.  —  By  Mel- 
ville M.  Bigelow,  Author  of  "  Law  of  Estoppel,"  "  Law  of  Fraud,"  etc. 
12mo.     Cloth,  $2.50  net;  law  sheep,  .53.00  net. 

A  clear  and   compact   treatise,  well   fitted  to  be  a  manual  of  a  student  of  law.  — 
Hon.  John  Bascom,  University  of  Wi.sconsin. 


I  have  examined  Bigelow  on  Kquity.  It  is  to  be  commended  for  its  clearness  and 
conciseness  of  statement.  I  regard  the  first  chapter  as  a  model.  The  doctrines  of  Tack- 
ing, Subrogation,  and  Marshalling,  found  in  Chapters  14,  19,  and  20,  are  more  easily 
comprehended  than  in  any  other  work  on  those  subjects  that  I  have  seen.  —  Hon  J.  U. 
Carpenter,  Dean  of  Law  Faculty,  University  of  Wisconsin. 

III.  HEARD    ON   CRIMINAL   PLEADING. 

It  deserves  an  important  position  anions  the  text-books  in  every 
Law  School  in  tlie  country.  —From  William  C.  Robinson,  Professor  of  Criminal 
Law,  etc.,  Yale  College. 

THE  PRINCIPLES  OF  CRIMINAL  PLEADING. -By  FRA^'KLIN  Fiskk 
Hkakd.     12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 

The  style  in  which  the  author  writes  is  admirably  adapted  to  the  object  to  be  accom- 
plished, —  it  is  clear  and  precise,  and  the  whole  matter  is  kept  within  the  bounds  of  a 
manual.  —  JV.  Y.  Tribune. 

An  interesting  manual,  thoroughly  supported  by  legal  authorities.  —  Hon.  John 
Bascom,  University  of  Wisconsin. 

IV.  HEARD    ON    CIVIL    PLEADING. 

An  admirable  companion  volume  to  his  "  Principles  of  Criminal 
Pleading,"  —  full,  clear,  concise.  —  From  Lemuel  3!oss,  Indiana  University, 
Bloomington. 

THE  PRINCIPLES  OF  PLEADING  IN  CIVIL  ACTIONS. —  By  Franklin 
FisivE  Heard,  Author  ol  'The  Principles  of  Criminal  Pleading."  12ni(i. 
Cloth,  $2.50  net;  law  sheep,  $3.00  net. 

He  has  taken  the  leading  and  established  rules,  and  illustrated  them  by  ample  cita- 
tions from  ancient  and  modern  learning.  Whoever  shall  make  himself  thoroughly 
acquainted  with  those  rules  as  here  laid  out  and  enforced,  cannot  fail  of  being  a  good 
pleader.  —  Boston  Courier. 

Under  whatever  system  of  statutory  procedure  a  law  student  may  design  to  practise, 
he  will  find  it  equally  necessary  to  become  familiar  with  the  principles  of  common  law 
pleading.  Mr.  Heard's  work  is  a  plain  and  clear  guide  to  these,  and  its  silence  in  regard 
to  many  of  the  formal  and  adventitious  technicalities  of  the  older  English  system  will 
commend  it  to  American  readers.  —  Hon.  Simeon  E.  Baldwin,  Law  Department  of  Yale 
College. 

V.  COOLEY    ON   CONSTITUTIONAL    LAW. 

No  Liawyer  can  afford  to  be  without  it,  and  every  voter  ought  to 
have  it.  —  From  Hon.  J.  H.  Carpenter,  Dean  of  Law  Faculty,  University  of 
Wisconsin. 

THE  GENERAL  PRINCIPLES  OF  CONSTITUTIONAL  LAW  IN  THE 
UNITED  STATES  OF  AMERICA.  —  By  Thomas  BI.  Cooley,  Author 
of  "A  Treatise  on  Constitutional  Limitations."     Second  edition,  by  Alexis 

C.   Angell,    of   the   Detroit   Bar.       12mo.      Cloth,   .1^2.50   net;    law   sheep, 

$3.00  net. 


The  new  edition  contains  large  additions.  In  its  preparation,  the  editor, 
wiiile  aiming  to  keep  the  book  a  manual,  and  not  to  make  it  a  digest,  lias  treated 
briefly  all  important  points  covered  by  the  cases  decided  up  to  a  very  recent 
date.  He  made  such  changes  in  the  text  and  notes  as  had  been  required  by 
the  many  important  decisions  upon  constitutional  law  rendered  in  the  last  ten 
years. 

A  masterly  exposition  of  the  Federal  Constitution  as  actually  interpreted  by  the 
courts.  .  .  .  This  book,  of  moderate  dimensions,  should  be  placed  in  every  student's 
hands.  —  Hem.  P.  Bliss,  Dean  of  Law  Department,  Stale  University  of  Missouri, 

It  is  worthy  of  the  reputation  of  the  distinguished  author.  It  is  the  best  book  on  the 
subject  to  be  placed  in  the  hands  of  a  student,  and  is  a  convenient  book  of  reference  for 
any  one.  — Prof.  Manning  F.  Force,  LL.D.,  Cincinnati  Law  School. 

It  ought  unquestionably  to  be  made  the  basis  of  a  course  of  instruction  in  all  our 
higher  schools  and  colleges.  — Hon.  John  F.  Dillon,  Professor  of  Columbia  Law  School, 
New  York. 

It  is  a  work  of  great  value,  not  only  for  students  in  institutions  of  learning,  but  as 
well  for  the  lawyer,  to  whom  it  supplies  at  once  a  Treatise  and  a  Digest  of  Constitutional 
Law.  —  Henri/  Hitchcock,  Dean  of  the  St.  Louis  Law  School. 

Clearly  and  compactly  written,  and  the  general  arrangement  well  adapted  for  students' 
use. — Hon.  Simeon  E.  Baldicin,  Laic  Department  of  Yale  College. 

I  have  examined  it  with  great  care,  comparing  it  closely  with  the  old  edition,  and- 
testing  it  in  various  points.  As  a  result,  it  gives  me  pleasure  to  state  that  we  shall  use 
the  book  both  in  the  courses  in  constitutional  history  and  law  in  the  collegiate  depart- 
ment, and  in  one  of  the  classes  in  the  law  school.  The  work  of  the  editor  of  the  new 
edition,  Mr.  Angell,  has  been  done  with  the  exactness  and  care  which  an  intimate 
acquaintance  with  him,  as  a  classmate  at  the  University  of  Michigan,  led  me  to  expect  in 
whatever  he  undertook.  Judge  Cooley  is  fortunate  in  having  .so  excellent  an  editor  for 
the  revision.  —  Letter  from  George  W.  Knight,  Professor  of  International  and  Consti- 
tutional Law,  Ohio  State  University. 

Your  name  alone  as  its  author  is  a  sufficient  guarantee  of  its  high  character  and  gen- 
eral usefulness,  not  only  for  the  use  of  the  students  of  law  schools  and  other  institutions 
of  learning,  for  which  it  was  originally  prepared,  but  also  for  members  of  the  bar.  The 
matters  discussed  are  stated  so  concisely  and  clearly  as  to  be  of  great  benefit  for  ready 
reference.  The  edition  sent  me  seems  to  have  all  the  late  cases  cited  and  referred  to  ; 
and  Mr.  Angell  seems  to  have  been  very  careful  and  successful  in  making  the  changes 
from  the  first  edition,  and  adding  additional  notes. — Hon.  Albert  H.  Horton,  Chief- 
Justice  of  the  Supreme  Court  of  Kansas,  to  Judge  Cooley. 

VI.      LANGDELL'S      SUMMARY      OF      CON- 
TRACTS. 

No  man  competent  to  judge  can  read  a  page  of  it  without  at  once 
recognizing  the  Iiand  of  a  great  master.  Every  line  is  compact  of 
ingenious  and  original  thought.  —  American  Law  Revieiv. 

A  SUMMARY  OF   THE  LAW   OF   CONTKACTS.  —  By  C.  C.  Langdell, 

Dane  Professor  of  Law  in  Harvard  University.      Second  edition.      12mo. 
Cloth,  4f-2.50  net ;  law  sheep,  .?:J.0()  net. 


VII.  CURTIS  ON  UNITED  STATES  COURTS. 

A  work  of  the  highest  standard  on  the  subject  treated.  —Boston  Post. 

CURTIS  ON  THE  UNITED  STATES  COURTS.  —  Jmisdictioii,  Practice,  and 
Peculiar  Jurisprudence  of  the  Courts  of  tlie  United  States.  B}'  Benjain£in 
R.  Curtis,  LL.D.  Edited  in-  Gkokge  Ticknor  Curtis  and  Benjamin 
R.  Curtis.     I'iniu.     Clotli,  .'if2.50  neil ;  law  sheep,  $3.00  Me<. 

These  lectures  were  delivered  by  the  late  Judge  Curtis  to  a  class  of  students 
in  the  Harvard  Law  School,  in  the  academic  year  1872-73. 

Cannot  fail  to  be  of  great  service  to  the  student  in  the  prosecution  of  his  legal  studies. 
Chicago  Legal  I\''ews. 

It  is  by  far  the  best  epitome  of  that  extensive  subject,  and  the  cleai-ness  of  the  style 
and  orderly  arrangement  of  the  learned  author  vtHI  especially  recommend  it  to  students. 
Hon.  Edmund  H.  Bennett,  Dean  of  School  of  Law,  Boston  University. 

There  is  not  to-day  in  existence  so  admirable  a  treatise  on  United  States  courts  and 
their  jurisdiction  as  this  little  book.  — MUwaulcee  Republican. 

VIII.  MAY'S    CRIMINAL   LAW. 

I  have  carefully  examined  and  read  through  May's  Criminal  liaw. 
This  work  is  certainly  one  of  distinguished  merit.  Its  definitions  and 
statements  of  principles  are  clear  and  concise.  Its  discussions  of  doubt- 
ful or  controverted  points  are  calm  and  scholarly.  The  cases  to  which 
it  refers  embrace  the  most  recent  English  and  American  decisions,  and 
therefore,  both  as  a  vade  meciim  for  the  criminal  lawyer  and  as  a  text- 
book for  the  student,  it  must  at  once  take  a  high  position  in  the 
literature  of  that  branch  of  jurisprudence. — From  William  C.  Robinson, 
Professor  of  Criminal  Law,  etc.,  Yale  College. 

THE  LAW  OF  CRIMES.  —  By  J.  Wilder  May,  Chief  Justice  of  the 
Municipal  Court  of  the  City  of  Boston.  Second  edition,  edited  by  Joseph 
Henry  Beale,  Jr.,  Assistant  Professor  of  Law  in  Harvard  University. 
12mo.     Cloth,  $2.50  net;  law  sheep,  .$3.00  net. 

This  new  edition  of  Judge  May's  deservedly  popular  work  contains  large 
additions.  The  editor  states  in  the  preface  that  the  original  plan  included  no 
discussion  of  the  subjects  of  Criminal  Pleading  and  Practice,  but  it  was  found 
that  it  would  be  better  adapted  to  the  use  of  students  if  these  subjects  were 
briefly  considered,  and  this  has  accordingly  been  done.  Much  has  also  been 
added  to  the  first  chapter,  which  contains  the  general  principles  underlying  the 
criminal  law. 

It  is  to  be  especially  commended  for  its  clear  and  concise  detinitions,  as  also  for  its 
citations  of  leading  cases  directly  upon  the  matter  under  discussion. —i^'rowi  J.  H. 
Carpenter,  Bean  of  Law  Faculty,  University  of  Wisconsin. 

It  is  not  a  mere  synopsis,  but  an  interesting  discussion,  quite  full  enough  to  give 
the  student  a  true  view  of  the  subject,  and  minute  enough  to  be  a  useful  handbook  to 
the  practitioner.  —New  York  Law  Joiirii/tl. 


IX.     STIMSON'S   LAW    GLOSSARY. 

It  is  a  valuable  addition  to  the  Students'  Series,  and  I  shall  cordially 
reeouiniend  it  as  a  first  dictionary  to  our  students. — Hon.  Edmund  H. 
Bennett^  Dean  of  School  oj  Law,  Boston  University. 

GLOSSAKY  OF  TECHNICAL  TERMS,  PHRASES,  AND  MAXIMS  OF 
THE  COMMON  LAW. —  By  Fkedekic  Jesup  Stimson.  r2iiio.  (Jlotli, 
$2.50  net ;  law  sheep,  :$3.00  net. 

A  concise  Law  Dictionaiy,  giving  in  common  English  an  explanation  of  the 
words  and  phrases,  English  as  well  as  Saxon,  Latin,  or  French,  which  are  of 
common  technical  use  in  the  law. 

Speciuieii  of  the  Definitions   in  Stimson's  Laiv  Glossary. 


I>ower.  The  life  estate  which  the  widow 
has  in  her  husband's  lands  on  his  death  ; 
usually  one-third  part  of  any  lands  of 
which  he  was  seised  iu  an  estate  of  in- 
heritance at  any  time  during  the  mar- 
riage, if  the  husband's  estate  in  such  lands 
was  such  that  the  common  issue  might 
have  inherited.  Dovcer  ad  ostium 
ecclesiae,  I.  (at  the  church  door)  was 
anciently  where  the  husband  specifically 
endowed  his  wife  with  certain  of  his  own 
lands ;  or  of  his  father's  lands,  Dower 
ex  assensu  patris.  If  this  was  not 
done,  she  was  assigned  her  Reason- 
able dower,  Dos  rationahilis,  I., 


Dower  l)y  the  common  la-w,  a  third 
part  of  the  husband's  land.  Dower  by 
ctistoni  :  varied  in  amount  according 
to  local  usage.      Dower  de  la  pluis 

belle,  //■•  (of  the  fairest  part):  where 
the  wife  was  endowed  of  socage  lands 
held  by  her  as  guardian.  Writ  of 
dower  or  Writ  of  right  of  dower  : 
an  old  real  action  lying  for  a  widow 
against  a  tenant  who  had  deprived  her  of 
part  of  her  dower.  Dower  unde  nihil 
habet,  /.  ••  a  similar  writ  which  lay  for 
a  widow  to  whom  no  dower  had  been 
assigned. 


The  information  crowded  by  Mr.  Stimson  in  his  duodecimo  volume  of  a  little  more 
than  three  hundred  pages,  is  \ery  great;  his  explanations  are  given  with  remarkable 
brevity,  and  legal  technicalities  are  avoided  so  completely  as  to  make  the  work  a  valu- 
able and  welcome  supplement   to   the  common   English   Dictionaries. —£o«/o«   Daily 

Advertiser. 


X.     ROBINSON'S    ELEMENTARY   LAW. 

The  book  is  convenient  to  the  instructor  who  will  use  it  as  a  text  to 
be  amplified  in  his  lectures,  and  valuable  to  the  student  who  will  con- 
sult the  references.  —Prof.  M.  F.  Force,  LL.D.,  Cincinnati  Law  School. 

ELEMENTARY    LAW. —By  William   C.   Robinson,   LL.D.,  Professor  of 

Elementary  Law   in   Yale  College.     12mo.     Cloth,   S2.50  net;    law  sheep, 

$3.00  net. 

It  contains  a  statement  of  the  principles,  rules,  and  definitions  of  American 
Common  Law,  both  civil  and  criminal,  arranged  in  logical  order,  with  refer- 
ences to  treatises  in  which  such  definitions,  rules,  and  principles  are  more 
extensively  discussed. 

This  volume  is  used  largely  in  law  schools,  and  the  author  has  a  special 
knowledge  of  the  requirements  of  the  student,  being  a  leading  instructor  at  the 


Law  School  of  Yale  College.  Tlie  student  who  intelligently  studies  this  work 
may  store  his  mind  with  lucid  and  concise  statements  of  the  leading  topics  of 
law;  and,  having  been  grounded  in  this  primary  information,  a  course  of  read- 
ing is  laid  down,  including  the  best  text-books  together  with  the  special  por- 
tions of  the  works  which  relate  to  the  subjects  in  question.  It  may  also  be 
used  with  great  benefit  as  a  review  book  for  examinations.  The  purpose  of 
this  most  useful  elementary  work  cannot  better  be  explained  than  by  here 
reprinting,  from  page  33,  Section  61,  relating  to  Transfer  of  Estates:  — 

Section  61.  Of  the  Ownership  and  Transfer  of  Estates. 
An  estate  may  belong  to  one  person  or  to  several  persons  collectively.  It 
may  also  be  transmitted  from  one  person  to  another,  or  lesser  estates  may  be 
carved  out  of  it  by  the  owner  and  be  granted  to  others.  The  relation  between 
co-owners  or  successive  owners  of  the  same  estate,  or  between  persons  one  of 
whom  derives  his  estate  from  the  other,  is  known  as  privity  of  estate. 
Read  2  Bl.  Comm.,  pp.  107,  179,  200,  201. 

1  Wash.  R.  P.,  B.  i,  Ch.  xiii,  Sec.  I,  §  1. 

2  Wash.  R.  P.,  B.  ii,  Ch.  i.  Sec.  1,  §  16. 
I  Greenl.  Ev.,  §§  189,  523. 

The  principles  are  admirably  stated.  —  Albany  Law  Journal. 

It  would  be  a  benefit  to  every  law  student  to  put  this  volume  into  his  liand,  and  make 
it  his  viide  mecum  throughout  the  wliole  of  his  professional  studies.  — Boston  Advertiser. 

It  might  worthily  be  adopted  as  a  text-book  for  every  senior  class  in  a  male  or  female 
college,  and  will  be  found  an  invaluable  accession  to  every  public  and  private  library.  — 
New  York  World. 

XI.  SWELL'S  MEDICAL  JURISPRUDENCE. 

It  is  excellently  done.  I  wish  it  might  be  read  by  every  student  of 
law  as  well  as  by  every  student  of  medicine.  —  Pro/.  Henri/  Wnde  Rogers, 
University  of  Michigan. 

A    MANUAL    OF    MEDICAL    JURISPRUDENCE    FOR    THE    USE    OF 
STUDENTS  AT  LAW  AND  OF  MEDICINE.  -  By  Mausiiall  D.  Eweli., 
M.D.,  LL.D.,  of  the  Union  Collei^e  of  Law,  Chicago.     12mo.     Cloth,  S2.50 
net ;  law  sheep,  $3.00  net. 

Mr.  Ewell  has  endeavored  to  produce  a  work  which,  within  n  moderate  com- 
pass, states  all  the  leading  facts  and  principles  of  the  science  concisely  and  yet 
clearly.  In  it  will  be  found  the  substance  of  all  the  principles  stated  in  the 
move  voluminous  and  expensive  worJcs. 

XII.  STEPHEN'S    DIG-EST  OF   EVIDENCE. 

Short  as  it  is,  1  believe  it  will  be  found  to  contain  practically  the 
■whole  law  of  the  subject.  —  T/ie  author. 

A  DIGEST  OF  THE  LAW  OF  EVIDENCE. —By  Sir  James  Fitzjamfs 
Stephen,  K.C.S.L,  a  Judge  of  the  High  Court  of  Justice,  Queen's  Bench 
Division.     From  the  Fourth  English  Edition.     With  Notes  and  Additional 


Illustrations  to  tlie  Present  Time,  chiefly  from  American  Cases,  including 
those  of  John  VViluku  May,  late  Ciiief  Justice  of  the  Municipal  Court  of 
the  City  of  Boston,  author  of  "The  Law  of  Insurance,"  etc.  12mo.  251 
pages.     Cloth,  $2  50  net;  law  sheep,  $3.00  net. 

A  full  and  exact  reprint  of  the  Fourth  (latest)  English  Edition,  revised  by 
the  author,  with  references  to  American  cases.  Many  editions  of  the  work  have 
been  published  in  America,  but  the  present  will  be  found  to  Ije  the  most  useful, 
as  it  includes  the  ver}'  valuable  notes  prepared  by  the  late  John  Wilder  Maj^, 
author  of  "The  Law  of  Crimes,"  etc.,  together  with  a  selection  of  cases  and 
references  supplementing  his  imiiortant  editorial  work. 

XIII.  ROBINSON'S    FORENSIC    ELO- 

QUENCE. 

This  is  a  book  which  no  student  of  law  can  afford  to  pass  by  with- 
out a  thorough  study  of  it.  It  is  also  a  ivork  which  no  practising 
lawyer  who  understands  the  trial  of  cau.ses  and  is  not  already  an 
ackno^vledged  leader  in  the  courts,  can  aftbrd  not  to  read  and  read 
again. — American  Law  Eetieiv. 

FORENSIC  ELOQUENCE,  A  MANUAL  FOR  ADVOCATES.— By  William 
C.  KoiiiNsox,  Professor  of   Elementary  Law  in  Yale   College,  author  of 
"The  Law  of    Patents  for  Useful    Inventions,"    "Elementary  Law,"  etc. 
12rao.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 
A  new  and  suggestive  work  on  the  Duties  and  Functions  of  the  Advocate. 

XIV.  BiaELOWS    BILLS,    NOTES,    AND 

CHECKS. 

AN  ELEMENTARY  TREATISE  ON  THE  LAW  OF  BILLS,  NOTES, 
AND  CHECKS  -  By  Melville  M.  Bigelow,  Ph.D.,  author  of  "An 
Elementary  Treatise  on  the  Law  of  Torts,"  etc.  12mo.  Cloth,  |!2.50  net; 
law  sheep,  $3.00  net. 

XV.  BRYANT    ON    CODE    PLEADING-. 

PRINCIPLES    OF    CODE  PLEADING   FOR    THE   USE    OF   STUDENTS. 

B}'  Hon.  Edwin  E.  Bryant,  Dean  of  Law  Department  of  State  Univer- 
sity of  Wisconsin.  12rao.  Cloth,  $2.50  net;  law  sheep,  $3.00  net.  (In 
preparation.) 

XVI.  ABBOTT'S    LAW    OF    WILLS. 

ELEMENTS  OF  THE  LAW  OF  WILLS.  — By  Nathan  Abbott,  Pro- 
fessor of  Wills,  etc.,  at  Northwestern  University,  Chicago.  12mo.  Cloth, 
$2.50  »e<;  law  sheep,  $3.00  ne<. 


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